Unassociated Document


    


    SECURITIES
      PURCHASE AGREEMENT

     

    This
      Securities Purchase Agreement (this “Agreement”)
      is
      dated as of June ___, 2008, between Juhl Wind, Inc., a Delaware corporation
      (the
“Company”),
      and
      each purchaser identified on the signature pages hereto (each, including its
      successors and assigns, a “Purchaser”
and
      collectively, the “Purchasers”).

     

    WHEREAS,
      subject to the terms and conditions set forth in this Agreement and pursuant
      to
      Section 4(2) of the Securities Act of 1933, as amended (the “Securities
      Act”),
      and
      Rule 506 promulgated thereunder, the Company desires to issue and sell to each
      Purchaser, and each Purchaser, severally and not jointly, desires to purchase
      from the Company, securities of the Company as more fully described in this
      Agreement.

     

    NOW,
      THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
      and for other good and valuable consideration the receipt and adequacy of which
      are hereby acknowledged, the Company and each Purchaser agree as
      follows:

     

    ARTICLE
      I

    DEFINITIONS

     

    1.1 Definitions.
      In
      addition to the terms defined elsewhere in this Agreement: (a) capitalized
      terms
      that are not otherwise defined herein have the meanings given to such terms
      in
      the Certificate of Designation (as defined herein), and (b) the following terms
      have the meanings set forth in this Section 1.1:

     

    “Accounts
      Receivable”
shall
      have the meaning ascribed to such term in Section 3.1(oo).

     

    “Acquiring
      Person”
shall
      have the meaning ascribed to such term in Section 4.7.

     

    “Action”
shall
      have the meaning ascribed to such term in Section 3.1(j).

     

    “Affiliate”
means
      any Person that, directly or indirectly through one or more intermediaries,
      controls or is controlled by or is under common control with a Person, as such
      terms are used in and construed under Rule 405 under the Securities Act.


     

    “Board
      of Directors” means
      the
      board of directors of the Company.

     

    “Business
      Day”
means
      any day except Saturday, Sunday, any day which is a federal legal holiday in
      the
      United States or any day on which banking institutions in the State of New
      York
      are authorized or required by law or other governmental action to
      close.

     

    “Certificate
      of Designation”
means
      the Certificate of Designation to be filed prior to the Closing by the Company
      with the Secretary of State of Delaware, in the form of Exhibit
      A
      attached
      hereto.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Closing”
means
      the closing of the purchase and sale of the Securities pursuant to Section
      2.1.

     

    “Closing
      Date”
means
      the Trading Day when all of the Transaction Documents have been executed and
      delivered by the applicable parties thereto, and all conditions precedent to
      (i)
      the Purchasers’ obligations to pay the Subscription Amount and (ii) the
      Company’s obligations to deliver the Securities have been satisfied or
      waived.

     

    “Closing
      Statement”
means
      the Closing Statement in the form Annex
      A
      attached
      hereto.

     

    “Commission”
means
      the United States Securities and Exchange Commission.

     

    “Common
      Stock”
means
      the common stock of the Company, par value $0.001 per share, and any other
      class
      of securities into which such securities may hereafter be reclassified or
      changed into.

     

    “Common
      Stock Equivalents”
means
      any securities of the Company or the Subsidiaries which would entitle the holder
      thereof to acquire at any time Common Stock, including, without limitation,
      any
      debt, preferred stock, rights, options, warrants or other instrument that is
      at
      any time convertible into or exercisable or exchangeable for, or otherwise
      entitles the holder thereof to receive Common Stock.

     

    “Company
      Counsel”
means
      Synergy Law Group, LLC, with offices located at 730 West Randolph, 6th Floor,
      Chicago, Illinois, 60661.

     

    “Conversion
      Price”
shall
      have the meaning ascribed to such term in the Certificate of
      Designation.

     

    “DanMar”
means
      DanMar and Associates, Inc., a Minnesota corporation.

     

    “Disclosure
      Schedules”
shall
      have the meaning ascribed to such term in Section 3.1.

     

    “Discussion
      Time”
shall
      have the meaning ascribed to such term in Section 3.2(f). 

     

    “Effective
      Date”
means
      the date that the initial Registration Statement filed by the Company pursuant
      to the Registration Rights Agreement is first declared effective by the
      Commission.

     

    “Escrow
      Agent”
means
      Feldman, Weinstein & Smith LLP.

     

    “Escrow
      Agreement”
means
      the escrow agreement entered into prior to the date hereof, attached hereto
      as
Exhibit
      F,
      by and
      among the Company and the Escrow Agent pursuant to which the Purchasers shall
      deposit Subscription Amounts with the Escrow Agent to be applied to the
      transactions contemplated hereunder.

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    “Evaluation
      Date”
shall
      have the meaning ascribed to such term in Section 3.1(r). 

    


    “Exchange
      Act”
means
      the Securities Exchange Act of 1934, as amended, and the rules and regulations
      promulgated thereunder.

    


    “Exchange
      Agreement”
means
      that certain Securities Exchange Agreement among the Company (f/k/a MH & SC,
      Incorporated), Juhl Energy and DanMar, dated June ___, 2008.

    


    “Executive
      Employment Agreements”
means
      the employment agreements entered into by and among the Company and each of
      Daniel Juhl and John Mitola to serve in the positions of Chief Executive Officer
      and President in the form attached hereto as Exhibit
      G.

    


    “Exempt
      Issuance”
means
      the issuance of (a) shares of Common Stock or options to employees, officers
      or
      directors of the Company, including, without limitation, those grants to John
      Mitola, Jeff Paulsen, Corey Juhl, and Tyler Juhl, as are disclosed in the
      attached Disclosure Schedules, pursuant to any stock or option plan duly adopted
      for such purpose by a majority of the non-employee members of the Board of
      Directors or a majority of the members of a committee of non-employee directors
      established for such purpose, (b) securities upon the exercise or exchange
      of or
      conversion of any Securities issued hereunder and/or other securities
      exercisable or exchangeable for or convertible into shares of Common Stock
      issued and outstanding on the date of this Agreement, provided that such
      securities have not been amended since the date of this Agreement to increase
      the number of such securities or to decrease the exercise, exchange or
      conversion price of such securities, (c) securities issued pursuant to
      acquisitions or strategic transactions approved by a majority of the
      disinterested directors of the Company, provided that any such issuance shall
      only be to a Person which is, itself or through its subsidiaries, an operating
      company in a business synergistic with the business of the Company and in which
      the Company receives benefits in addition to the investment of funds, but shall
      not include a transaction in which the Company is issuing securities primarily
      for the purpose of raising capital or to an entity whose primary business is
      investing in securities and (d) up to 2,250,000 shares of Common Stock issuable
      to Greenview Capital no later than 3 Trading Days following the date
      hereof.

    


    “FWS”
means
      Feldman Weinstein & Smith LLP with offices located at 420 Lexington Avenue,
      Suite 2620, New York, New York 10170-0002.

    


    “GAAP”
shall
      have the meaning ascribed to such term in Section 3.1(h).

    


    “Indebtedness”
shall
      have the meaning ascribed to such term in Section 3.1(aa).

    


    “Intellectual
      Property Rights”
shall
      have the meaning ascribed to such term in Section 3.1(o).

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

    
 

    “Juhl
      Energy”
means
      Juhl Energy Development, Inc., a Minnesota corporation.

     

    “Legend
      Removal Date”
shall
      have the meaning ascribed to such term in Section 4.1(c). 

    


    “Liens”
means
      a
      lien, charge, security interest, encumbrance, right of first refusal, preemptive
      right or other restriction.

    


    “Lock-Up
      Agreement”
means
      the Lock-Up Agreement, dated as of the date hereof, by and among the Company
      and
      the directors, officers, and 10% stockholders of the Company, in the form of
      Exhibit
      E
      attached
      hereto.

     

    “Material
      Adverse Effect”
shall
      have the meaning assigned to such term in Section 3.1(b).

    


    “Material
      Permits”
shall
      have the meaning ascribed to such term in Section 3.1(m).

    


    “Maximum
      Rate”
shall
      have the meaning ascribed to such term in Section 5.17.

    


    “Merger”
means
      the closing of the acquisition of 100% of the issued and outstanding capital
      stock of Juhl Energy and DanMar by the Company pursuant to the Exchange
      Agreement. 

    


    “Merger
      8-K”
shall
      have the meaning ascribed to such term in Section 3.1(y). 

    


    “Merger
      Date”
means
      the date of the consummation of the Merger. 

    


    “Participation
      Maximum”
shall
      have the meaning ascribed to such term in Section 4.12(a). 

    


    “Person”
means
      an individual or corporation, partnership, trust, incorporated or unincorporated
      association, joint venture, limited liability company, joint stock company,
      government (or an agency or subdivision thereof) or other entity of any
      kind.

    


    “Preferred
      Stock”
means
      the up to 5,160,000 shares of the Company’s Series A 8% Convertible Preferred
      Stock issued hereunder having the rights, preferences and privileges set forth
      in the Certificate of Designation, in the form of Exhibit
      A
      hereto.

    


    “Pre-Notice”
shall
      have the meaning ascribed to such term in Section 4.12(b). 

    


    “Prior
      Subsidiary”
shall
      mean My Health and Safety Supply Company, LLC, an Indiana limited liability
      company.

     

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    “Pro
      Rata Portion”
shall
      have the meaning ascribed to such term in Section 4.12(e).

     

    “Proceeding”
means
      an action, claim, suit, investigation or proceeding (including, without
      limitation, an informal investigation or partial proceeding, such as a
      deposition), whether commenced or threatened.

    


    “Purchaser
      Party”
shall
      have the meaning ascribed to such term in Section 4.10.

    


    “Registration
      Rights Agreement”
means
      the Registration Rights Agreement, dated the date hereof, among the Company
      and
      the Purchasers, in the form of Exhibit
      B
      attached
      hereto.

    


    “Registration
      Statement”
means
      a
      registration statement meeting the requirements set forth in the Registration
      Rights Agreement and covering the resale of the Underlying Shares by each
      Purchaser as provided for in the Registration Rights Agreement.

    


    “Required
      Approvals”
shall
      have the meaning ascribed to such term in Section 3.1(e).


     

    “Required
      Minimum”
means,
      as of any date, the maximum aggregate number of shares of Common Stock then
      issued or potentially issuable in the future pursuant to the Transaction
      Documents, including any Underlying Shares issuable upon exercise in full of
      all
      Warrants or conversion in full of all shares of Preferred Stock, ignoring any
      conversion or exercise limits set forth therein, and assuming that any
      previously unconverted shares of Preferred Stock are held until the third
      anniversary of the Closing Date and all dividends are paid in shares of Common
      Stock until such third anniversary.

     

    “Rule
      144”
means
      Rule 144 promulgated by the Commission pursuant to the Securities Act, as such
      Rule may be amended from time to time, or any similar rule or regulation
      hereafter adopted by the Commission having substantially the same effect as
      such
      Rule.

    


    “SEC
      Reports”
shall
      have the meaning ascribed to such term in Section 3.1(h).

    


    “Securities”
means
      the Preferred Stock, the Warrants, the Warrant Shares and the Underlying
      Shares.

    


    “Securities
      Act”
means
      the Securities Act of 1933, as amended, and the rules and regulations
      promulgated thereunder. 

    


    “Series
      A Warrants”
means,
      collectively, the Series A Common Stock purchase warrants delivered to the
      Purchasers at the Closing in accordance with Section 2.2(a) hereof, which
      Warrants shall be exercisable immediately and have a term of exercise equal
      to
      five years and an exercise price equal to $1.25, subject to adjustment therein,
      in the form of Exhibit
      D
      attached
      hereto.

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    “Series
      B Warrants”
means,
      collectively, the Series B Common Stock purchase warrants delivered to the
      Purchasers at the Closing in accordance with Section 2.2(a) hereof, which
      Warrants shall be exercisable immediately and have a term of exercise equal
      to
      five years and an exercise price equal to $1.50, subject to adjustment therein,
      in the form of Exhibit
      D
      attached
      hereto.

     

    “Series
      C Warrants”
means,
      collectively, the Series C Common Stock purchase warrants delivered to the
      Purchasers at the Closing in accordance with Section 2.2(a) hereof, which
      Warrants shall be exercisable immediately and have a term of exercise equal
      to
      five years and an exercise price equal to $1.75, subject to adjustment therein,
      in the form of Exhibit
      D
      attached
      hereto.

     

    “Short
      Sales”
means
      all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange
      Act (but shall not be deemed to include the location and/or reservation of
      borrowable shares of Common Stock).

    


    “Stated
      Value”
means
      $1.001 
      Based upon a pre-money valuation of $23,611,111.
      per
      share of Preferred Stock.

    


    “Subscription
      Amount”
shall
      mean, as to each Purchaser, the aggregate amount to be paid for the Preferred
      Stock purchased hereunder as specified below such Purchaser’s name on the
      signature page of this Agreement and next to the heading “Subscription Amount,”
in United States dollars and in immediately available funds.

    


    “Subsequent
      Financing”
shall
      have the meaning ascribed to such term in Section 4.12(a).

    


    “Subsequent
      Financing Notice”
shall
      have the meaning ascribed to such term in Section 4.12(b).

    


    “Subsidiary”
means
      any subsidiary of the Company as set forth on Schedule
      3.1(a)
      and
      shall, where applicable, also include any direct or indirect subsidiary of
      the
      Company formed or acquired after the date hereof, but shall not include the
      Prior Subsidiary.

    


    “Trading
      Day”
means
      a
      day on which the principal Trading Market is open for trading.

    


    “Trading
      Market”
means
      the following markets or exchanges on which the Common Stock is listed or quoted
      for trading on the date in question: the American Stock Exchange, the Nasdaq
      Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market,
      the
      New York Stock Exchange or the OTC Bulletin Board.

     

    
      
        
1
        Based
        upon a pre-money valuation of $23,611,111.

    

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    “Transaction
      Documents”
means
      this Agreement, the Certificate of Designation, the Warrants, the Escrow
      Agreement, the Lock-Up Agreement, the Registration Rights Agreement, all
      schedules and exhibits thereto and hereto and any other documents or agreements
      executed in connection with the transactions contemplated
      hereunder.

    


    “Transfer
      Agent”
means
      Island Stock Transfer Company, the current transfer agent of the Company, with
      a
      mailing address of 100 Second Avenue South, Suite 104N, St. Petersburg, Florida
      33701 and a facsimile number of 727.289.0069, and any successor transfer agent
      of the Company.

    


    “Underlying
      Shares”
means
      the shares of Common Stock issued and issuable upon conversion of the Preferred
      Stock, upon exercise of the Warrants and issued and issuable in lieu of the
      cash
      payment of dividends on the Preferred Stock in accordance with the terms of
      the
      Certificate of Designation.

    


    “Variable
      Rate Transaction”
      shall
      have the meaning ascribed to such term in Section 4.13(b).

     

    “VWAP”
means,
      for any date, the price determined by the first of the following clauses that
      applies: (a) if the Common Stock is then listed or quoted on a Trading Market,
      the daily volume weighted average price of the Common Stock for such date (or
      the nearest preceding date) on the Trading Market on which the Common Stock
      is
      then listed or quoted for trading as reported by Bloomberg L.P. (based on a
      Trading Day from 9:30 a.m. (New York City time) to 4:02 p.m. (New York City
      time); (b)  if the OTC Bulletin Board is not a Trading Market, the volume
      weighted average price of the Common Stock for such date (or the nearest
      preceding date) on the OTC Bulletin Board; (c) if the Common Stock is not then
      listed or quoted for trading on the OTC Bulletin Board and if prices for the
      Common Stock are then reported in the “Pink Sheets” published by Pink Sheets,
      LLC (or a similar organization or agency succeeding to its functions of
      reporting prices), the most recent bid price per share of the Common Stock
      so
      reported; or (d) in all other cases, the fair market value of a share of
      Common Stock as determined by an independent appraiser selected in good faith
      by
      the Purchasers of a majority in interest of the Securities then outstanding
      and
      reasonably acceptable to the Company, the fees and expenses of which shall
      be
      paid by the Company..

     

    “Vision”
means
      Vision Opportunity Master Fund, Ltd. 

     

    “Warrants”
means
      the Series A Warrants, the Series B Warrants and the Series C
      Warrants.

     

    “Warrant
      Shares”
means
      the shares of Common Stock issuable upon exercise of the Warrants.

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      II

    PURCHASE
      AND SALE

     

    2.1 Closing.
      On the
      Closing Date, upon the terms and subject to the conditions set forth herein,
      substantially concurrent with the execution and delivery of this Agreement
      by
      the parties hereto, the Company agrees to sell, and the Purchasers agree,
      severally and not jointly, to purchase, up to an aggregate of $5,160,000 of
      shares of Preferred Stock with an aggregate Stated Value equal to such
      Purchaser’s Subscription Amount, and Warrants as determined by pursuant to
      Section 2.2(a). The aggregate number of shares of Preferred Stock sold hereunder
      shall be up to 5,160,000. Each Purchaser shall deliver to the Escrow Agent
      via
      wire transfer or a certified check of immediately available funds equal to
      their
      Subscription Amount and the Company shall deliver to each Purchaser their
      respective shares of Preferred Stock and Warrants as determined pursuant to
      Section 2.2(a), and the Company and each Purchaser shall deliver the other
      items
      set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the
      covenants and conditions set forth in Sections 2.2 and 2.3, the Closing shall
      occur at the offices of the Escrow Agent or such other location as the parties
      shall mutually agree and the Company and each Purchaser shall deliver to the
      Escrow Agent the Form of Escrow Release Notice (as defined in the Escrow
      Agreement), duly executed.

     

    2.2 Deliveries.

     

    (a)  On
      or
      prior to the Closing Date, the Company shall deliver or cause to be delivered
      to
      each Purchaser the following:

     

    (i)
      this
      Agreement duly executed by the Company;

     

    (ii)
      a
      legal
      opinion of Company Counsel, in substantially the form of Exhibit
      C
      attached
      hereto;

     

    (iii)
      a
      certificate evidencing a number of shares of Preferred Stock equal to such
      Purchaser’s Subscription Amount divided by the Stated Value, registered in the
      name of such Purchaser;

     

    (iv)
      the
      Lock-Up Agreements; 

     

    (v)
      a
      Series
      A Warrant registered in the name of such Purchaser to purchase up to a number
      of
      shares of Common Stock equal to 50% of such Purchaser’s Subscription Amount
      divided by the Conversion Price;

     

    (vi)
      a
      Series
      B Warrant registered in the name of such Purchaser to purchase up to a number
      of
      shares of Common Stock equal to 50% of such Purchaser’s Subscription Amount
      divided by the Conversion Price;

     

    (vii)
      a
      Series
      C Warrant registered in the name of such Purchaser to purchase up to a number
      of
      shares of Common Stock equal to 50% of such Purchaser’s Subscription Amount
      divided by the Conversion Price;

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    (viii)
      the
      Escrow Agreement;

     

    (ix)
      evidence
      of the filing of the Certificate of Designation with the Secretary of State
      of
      Delaware;

     

    (x)
      an
      officer’s certificate from the Chief Executive Officer, dated as of the Closing
      Date, certifying and setting forth (A) the names, signatures and positions
      of
      the Persons authorized to execute this Agreement and any other Transaction
      Documents to which the Company is a party, (B) a copy of the resolutions of
      the
      Company authorizing the execution, delivery and performance of this Agreement,
      (C) certifying that the representations and warranties of the Company are true
      and correct as of the Closing Date and that the Company has satisfied all of
      the
      conditions to the Closing and (D) certifying the establishment of an employee
      stock option plan in which the Common Stock Equivalents issuable pursuant to
      such plan do not exceed 10% of the issued and outstanding Common Stock at the
      time of establishment of such plan; and

     

    (xi)
      the
      Registration Rights Agreement duly executed by the Company.

     

    (b)  On
      or
      prior to the Closing Date, each Purchaser shall deliver or cause to be delivered
      to the Company (except as noted) the following:

     

    (i)
      this
      Agreement duly executed by such Purchaser;

     

    (ii)
      such
      Purchaser’s Subscription Amount as to the applicable Closing by wire transfer to
      the Escrow Agent; 

     

    (iii)
      the
      Escrow Agreement; and

     

    (iv)
      the
      Registration Rights Agreement duly executed by such Purchaser.

     

    2.3 Closing
      Conditions.

     

    (a)  The
      obligations of the Company hereunder in connection with the Closing are subject
      to the following conditions being met:

     

    (i)
      the
      accuracy in all material respects on the Closing Date of the representations
      and
      warranties of the Purchasers contained herein;

     

    (ii)
      the
      Merger shall have occurred;

     

    (iii)
      all
      obligations, covenants and agreements of each Purchaser required to be performed
      at or prior to the Closing Date shall have been performed; and

     

    (iv)
      the
      delivery by each Purchaser of the items set forth in Section 2.2(b) of this
      Agreement.

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    (b)  The
      respective obligations of the Purchasers hereunder in connection with the
      Closing are subject to the following conditions being met:

     

    (i)
      the
      accuracy in all material respects when made and on the Closing Date of the
      representations and warranties of the Company contained herein;

     

    (ii)
      all
      obligations, covenants and agreements of the Company required to be performed
      at
      or prior to the Closing Date shall have been performed;

     

    (iii)
      the
      establishment of an employee stock plan in which the underlying Common Stock
      Equivalents do not exceed 10% of the issued and outstanding Common Stock and
      Preferred Stock at the time of establishment;

     

    (iv)
      the
      Merger shall have occurred and the Company shall have (A) delivered the
      Purchasers (x) evidence thereof and (y) a copy of the legal opinion issued
      in
      connection therewith, which legal opinion shall provide that the Purchasers
      are
      third party beneficiaries thereof and (B) provided evidence that the Company
      is
      prepared to file the Merger 8-K with the Commission on or before the
      2nd
      Trading
      Day following the consummation of the Merger; 

     

    (v)
      no
      later
      than three Trading Days prior to the Closing Date, the delivery by the Company
      of a draft of the Current Report on Form 8-K, disclosing the material terms
      of
      the transactions contemplated hereby as required to be filed pursuant to Section
      4.6 hereof;

     

    (vi)
      the
      delivery by the Company of proforma audited financial statements for the full
      years ending 2006 and 2007 and reviewed financial statements for the quarter
      ended March 31, 2007 and the quarter ending March 31, 2008;

     

    (vii)
      the
      delivery by the Company of the items set forth in Section 2.2(a) of this
      Agreement;

     

    (viii)
      there
      shall have been no Material Adverse Effect with respect to the Company since
      the
      date hereof; 

     

    (ix) the
      delivery by the Company of each of the duly executed Executive Employment
      Agreements; and

     

    (x)
      from
      the
      date hereof to the Closing Date, trading in the Common Stock shall not have
      been
      suspended by the Commission or the Company’s principal Trading Market (except
      for any suspension of trading of limited duration agreed to by the Company,
      which suspension shall be terminated prior to the Closing), and, at any time
      prior to the Closing Date, trading in securities generally as reported by
      Bloomberg L.P. shall not have been suspended or limited, or minimum prices
      shall
      not have been established on securities whose trades are reported by such
      service, or on any Trading Market, nor shall a banking moratorium have been
      declared either by the United States or New York State authorities nor shall
      there have occurred any material outbreak or escalation of hostilities or other
      national or international calamity of such magnitude in its effect on, or any
      material adverse change in, any financial market which, in each case, in the
      reasonable judgment of each Purchaser, makes it impracticable or inadvisable
      to
      purchase the Securities at the Closing.

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    ARTICLE
      III

    REPRESENTATIONS
      AND WARRANTIES

     

    3.1 Representations
      and Warranties of the Company.
      Except
      as set forth in the Disclosure Schedules, which Disclosure Schedules shall
      be
      deemed a part hereof and shall qualify any representation or otherwise made
      herein to the extent of the disclosure contained in the corresponding section
      of
      the Disclosure Schedules, the Company hereby makes the following representations
      and warranties to each Purchaser. All representations and warranties made
      hereunder by the Company assume that the Merger has been completed and such
      assets and any liabilities of Juhl Energy resulting therefrom are consolidated
      with the Company:

     

    (a)  Subsidiaries.
      All of
      the direct and indirect subsidiaries of the Company are set forth on
Schedule
      3.1(a).
      The
      Company owns, directly or indirectly, all of the capital stock or other equity
      interests of each Subsidiary free and clear of any Liens, and all of the issued
      and outstanding shares of capital stock of each Subsidiary are validly issued
      and are fully paid, non-assessable and free of preemptive and similar rights
      to
      subscribe for or purchase securities. If the Company has no subsidiaries, all
      other references to the Subsidiaries or any of them in the Transaction Documents
      shall be disregarded.

     

    
      
        
        

      

      
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    (b)  Organization
      and Qualification.
      The
      Company and each of the Subsidiaries is an entity duly incorporated or otherwise
      organized, validly existing and in good standing under the laws of the
      jurisdiction of its incorporation or organization, with the requisite power
      and
      authority to own and use its properties and assets and to carry on its business
      as currently conducted. Neither the Company nor any Subsidiary is in violation
      nor default of any of the provisions of its respective certificate or articles
      of incorporation, bylaws or other organizational or charter documents. Each
      of
      the Company and the Subsidiaries is duly qualified to conduct business and
      is in
      good standing as a foreign corporation or other entity in each jurisdiction
      in
      which the nature of the business conducted or property owned by it makes such
      qualification necessary, except where the failure to be so qualified or in
      good
      standing, as the case may be, could not have or reasonably be expected to result
      in: (i) a material adverse effect on the legality, validity or enforceability
      of
      any Transaction Document, (ii) a material adverse effect on the results of
      operations, assets, business, prospects or condition (financial or otherwise)
      of
      the Company and the Subsidiaries, taken as a whole, or (iii) a material adverse
      effect on the Company’s ability to perform in any material respect on a timely
      basis its obligations under any Transaction Document (any of (i), (ii) or (iii),
      a “Material
      Adverse Effect”)
      and no
      Proceeding has been instituted in any such jurisdiction revoking, limiting
      or
      curtailing or seeking to revoke, limit or curtail such power and authority
      or
      qualification.

     

    (c)  Authorization;
      Enforcement.
      The
      Company has the requisite corporate power and authority to enter into and to
      consummate the transactions contemplated by each of the Transaction Documents
      and otherwise to carry out its obligations hereunder and thereunder. The
      execution and delivery of each of the Transaction Documents by the Company
      and
      the consummation by it of the transactions contemplated hereby and thereby
      have
      been duly authorized by all necessary action on the part of the Company and
      no
      further action is required by the Company, the Board of Directors or the
      Company’s stockholders in connection therewith other than in connection with the
      Required Approvals. Each Transaction Document to which it is a party has been
      (or upon delivery will have been) duly executed by the Company and, when
      delivered in accordance with the terms hereof and thereof, will constitute
      the
      valid and binding obligation of the Company enforceable against the Company
      in
      accordance with its terms, except: (i) as limited by general equitable
      principles and applicable bankruptcy, insolvency, reorganization, moratorium
      and
      other laws of general application affecting enforcement of creditors’ rights
      generally, (ii) as limited by laws relating to the availability of specific
      performance, injunctive relief or other equitable remedies and (iii) insofar
      as
      indemnification and contribution provisions may be limited by applicable
      law.

     

    (d)  No
      Conflicts.
      The
      execution, delivery and performance by the Company of the Transaction Documents,
      the issuance and sale of the Securities and the consummation by it to which
      it
      is a party of the other transactions contemplated hereby and thereby do not
      and
      will not: (i) conflict with or violate any provision of the Company’s or any
      Subsidiary’s certificate or articles of incorporation, bylaws or other
      organizational or charter documents, (ii) conflict with, or constitute a default
      (or an event that with notice or lapse of time or both would become a default)
      under, result in the creation of any Lien upon any of the properties or assets
      of the Company or any Subsidiary, or give to others any rights of termination,
      amendment, acceleration or cancellation (with or without notice, lapse of time
      or both) of, any agreement, credit facility, debt or other instrument
      (evidencing a Company or Subsidiary debt or otherwise) or other understanding
      to
      which the Company or any Subsidiary is a party or by which any property or
      asset
      of the Company or any Subsidiary is bound or affected, or (iii) subject to
      the
      Required Approvals, conflict with or result in a violation of any law, rule,
      regulation, order, judgment, injunction, decree or other restriction of any
      court or governmental authority to which the Company or a Subsidiary is subject
      (including federal and state securities laws and regulations), or by which
      any
      property or asset of the Company or a Subsidiary is bound or affected; except
      in
      the case of each of clauses (ii) and (iii), such as could not have or reasonably
      be expected to result in a Material Adverse Effect.

     

    
      
        
        

      

      
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    (e)  Filings,
      Consents and Approvals.
      Except
      as set forth on Schedule
      3.1(e)
      attached
      hereto, the Company is not required to obtain any consent, waiver, authorization
      or order of, give any notice to, or make any filing or registration with, any
      court or other federal, state, local or other governmental authority or other
      Person in connection with the execution, delivery and performance by the Company
      of the Transaction Documents, other than: (i) the filings required pursuant
      to
      Section 4.6 of this Agreement, (ii) the filing with the Commission of the
      Registration Statement, (iii) the notice and/or application(s) to each
      applicable Trading Market for the issuance and sale of the Securities and the
      listing of the Underlying Shares for trading thereon in the time and manner
      required thereby and (iv) the filing of Form D with the Commission and such
      filings as are required to be made under applicable state securities laws
      (collectively, the “Required
      Approvals”).

     

    (f)  Issuance
      of the Securities.
      The
      Securities are duly authorized and, when issued and paid for in accordance
      with
      the applicable Transaction Documents, will be duly and validly issued, fully
      paid and nonassessable, free and clear of all Liens imposed by the Company
      other
      than restrictions on transfer provided for in the Transaction Documents. The
      Underlying Shares, when issued in accordance with the terms of the Transaction
      Documents, will be validly issued, fully paid and nonassessable, free and clear
      of all Liens imposed by the Company other than restrictions on transfer provided
      for in the Transaction Documents. The Company has reserved from its duly
      authorized capital stock a number of shares of Common Stock for issuance of
      the
      Underlying Shares at least equal to the Required Minimum on the date hereof.
      

     

    (g)  Capitalization.
      The
      capitalization of the Company immediately prior to Closing and following the
      consummation of the Reverse Merger is as set forth on Schedule
      3.1(g),
      which
Schedule
      3.1(g)
      shall
      also include the number of shares of Common Stock owned beneficially, and of
      record, by Affiliates of the Company as of the date hereof. The Company has
      not
      issued any capital stock since its most recently filed periodic report under
      the
      Exchange Act, other than pursuant to: (i) the exercise of employee stock options
      under the Company’s stock option plans, (ii) the issuance of shares of Common
      Stock to employees pursuant to the Company’s employee stock purchase plans,
      (iii) the conversion and/or exercise of Common Stock Equivalents outstanding
      as
      of the date of the most recently filed periodic report under the Exchange Act,
      and (iv) the issuance of shares incident to this transaction. No Person has
      any
      right of first refusal, preemptive right, right of participation, or any similar
      right to participate in the transactions contemplated by the Transaction
      Documents. Except as a result of the purchase and sale of the Securities, there
      are no outstanding options, warrants, scrip rights to subscribe to, calls or
      commitments of any character whatsoever relating to, or securities, rights
      or
      obligations convertible into or exercisable or exchangeable for, or giving
      any
      Person any right to subscribe for or acquire any shares of Common Stock, or
      contracts, commitments, understandings or arrangements by which the Company
      or
      any Subsidiary is or may become bound to issue additional shares of Common
      Stock
      or Common Stock Equivalents. The issuance and sale of the Securities will not
      obligate the Company to issue shares of Common Stock or other securities to
      any
      Person (other than the Purchasers) and will not result in a right of any holder
      of Company securities to adjust the exercise, conversion, exchange or reset
      price under any of such securities. All of the outstanding shares of capital
      stock of the Company are validly issued, fully paid and nonassessable, have
      been
      issued in compliance with all federal and state securities laws, and none of
      such outstanding shares was issued in violation of any preemptive rights or
      similar rights to subscribe for or purchase securities. No further approval
      or
      authorization of any stockholder, the Board of Directors or others is required
      for the issuance and sale of the Securities. There are no stockholders
      agreements, voting agreements or other similar agreements with respect to the
      Company’s capital stock to which the Company is a party or, to the knowledge of
      the Company, between or among any of the Company’s stockholders.

     

    
      
        
        

      

      
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    (h)  SEC
      Reports; Financial Statements.
      The
      Company has filed all reports, schedules, forms, statements and other documents
      required to be filed by the Company under the Securities Act and the Exchange
      Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years
      preceding the date hereof (or such shorter period as the Company was required
      by
      law or regulation to file such material) (the foregoing materials, including
      the
      exhibits thereto and documents incorporated by reference therein, being
      collectively referred to herein as the “SEC
      Reports”)
      on a
      timely basis or has received a valid extension of such time of filing and has
      filed any such SEC Reports prior to the expiration of any such extension. As
      of
      their respective dates, the SEC Reports complied in all material respects with
      the requirements of the Securities Act and the Exchange Act, as applicable,
      and
      none of the SEC Reports, when filed, contained any untrue statement of a
      material fact or omitted to state a material fact required to be stated therein
      or necessary in order to make the statements therein, in the light of the
      circumstances under which they were made, not misleading. The Company has never
      been an issuer subject to Rule 144(i) under the Securities Act. The combined
      audited financial statements of Danmar and Juhl Energy and its direct and
      indirect subsidiaries for the past two fiscal years and unaudited financial
      statements for the most recent fiscal quarter are attached hereto as Schedule
      3.1(h). Such financial statements comply in all material respects with
      applicable accounting requirements and the rules and regulations of the
      Commission with respect thereto as in effect at the time of filing. Such
      financial statements have been prepared in accordance with United States
      generally accepted accounting principles applied on a consistent basis during
      the periods involved (“GAAP”),
      except as may be otherwise specified in such financial statements or the notes
      thereto and except that unaudited financial statements may not contain all
      footnotes required by GAAP, and fairly present in all material respects the
      financial position of Juhl Energy and its consolidated Subsidiaries as of and
      for the dates thereof and the results of operations and cash flows for the
      periods then ended, subject, in the case of unaudited statements, to normal,
      immaterial, year-end audit adjustments. The financial statements of the Company
      included in the SEC Reports comply in all material respects with applicable
      accounting requirements and the rules and regulations of the Commission with
      respect thereto as in effect at the time of filing. Such financial statements
      have been prepared in accordance with GAAP, except as may be otherwise specified
      in such financial statements or the notes thereto and except that unaudited
      financial statements may not contain all footnotes required by GAAP, and fairly
      present in all material respects the financial position of the Company and
      its
      consolidated Subsidiaries as of and for the dates thereof and the results of
      operations and cash flows for the periods then ended, subject, in the case
      of
      unaudited statements, to normal, immaterial, year-end audit adjustments.


     

    
      
        
        

      

      
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    (i)  Material
      Changes; Undisclosed Events, Liabilities or Developments.
      Since
      the date of the latest audited financial statements included attached hereto
      as
Schedule
      3.1(h),
      except
      as specifically disclosed on Schedule
      3.1(i):
      (i)
      there has been no event, occurrence or development that has had or that could
      reasonably be expected to result in a Material Adverse Effect, (ii) the Company
      has not incurred any liabilities (contingent or otherwise) other than (A) trade
      payables and accrued expenses incurred in the ordinary course of business
      consistent with past practice (B) liabilities incurred as a result of this
      transaction and (C) liabilities not required to be reflected in the Company’s
      financial statements pursuant to GAAP or disclosed in filings made with the
      Commission, (iii) the Company has not altered its method of accounting, (iv)
      the
      Company has not declared or made any dividend or distribution of cash or other
      property to its stockholders or purchased, redeemed or made any agreements
      to
      purchase or redeem any shares of its capital stock and (v) the Company has
      not
      issued any equity securities to any officer, director or Affiliate, except
      pursuant to existing Company stock option plans. The Company does not have
      pending before the Commission any request for confidential treatment of
      information. Except for the issuance of the Securities contemplated by this
      Agreement or as set forth on Schedule
      3.1(i),
      no
      event, liability or development has occurred or exists with respect to the
      Company or its Subsidiaries or their respective business, properties, operations
      or financial condition, that would be required to be disclosed by the Company
      under applicable securities laws at the time this representation is made or
      deemed made that has not been publicly disclosed at least 1 Trading Day prior
      to
      the date that this representation is made. 

     

    (j)  Litigation.
      There
      is no action, suit, inquiry, notice of violation, proceeding or investigation
      pending or, to the knowledge of the Company, threatened against or affecting
      the
      Company, any Subsidiary or any of their respective properties before or by
      any
      court, arbitrator, governmental or administrative agency or regulatory authority
      (federal, state, county, local or foreign) (collectively, an “Action”)
      which
      (i) adversely affects or challenges the legality, validity or enforceability
      of
      any of the Transaction Documents or the Securities or (ii) could, if there
      were
      an unfavorable decision, have or reasonably be expected to result in a Material
      Adverse Effect. Neither the Company nor any Subsidiary, nor any director or
      officer thereof, is or has been the subject of any Action involving a claim
      of
      violation of or liability under federal or state securities laws or a claim
      of
      breach of fiduciary duty. There has not been, and to the knowledge of the
      Company, there is not pending or contemplated, any investigation by the
      Commission involving the Company or any current or former director or officer
      of
      the Company. The Commission has not issued any stop order or other order
      suspending the effectiveness of any registration statement filed by the Company
      or any Subsidiary under the Exchange Act or the Securities Act.

     

    (k)  Labor
      Relations.
      No
      material labor dispute exists or, to the knowledge of the Company, is imminent
      with respect to any of the employees of the Company which could reasonably
      be
      expected to result in a Material Adverse Effect. None of the Company’s or its
      Subsidiaries’ employees is a member of a union that relates to such employee’s
      relationship with the Company or such Subsidiary, and neither the Company nor
      any of its Subsidiaries is a party to a collective bargaining agreement, and
      the
      Company and its Subsidiaries believe that their relationships with their
      employees are good. No executive officer, to the knowledge of the Company,
      is,
      or is now expected to be, in violation of any material term of any employment
      contract, confidentiality, disclosure or proprietary information agreement
      or
      non-competition agreement, or any other contract or agreement or any restrictive
      covenant in favor of any third party, and the continued employment of each
      such
      executive officer does not subject the Company or any of its Subsidiaries to
      any
      liability with respect to any of the foregoing matters. The Company and its
      Subsidiaries are in compliance with all U.S. federal, state, local and foreign
      laws and regulations relating to employment and employment practices, terms
      and
      conditions of employment and wages and hours, except where the failure to be
      in
      compliance could not, individually or in the aggregate, reasonably be expected
      to have a Material Adverse Effect.

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

    (l)  Compliance.
      Neither
      the Company nor any Subsidiary: (i) is in default under or in violation of
      (and
      no event has occurred that has not been waived that, with notice or lapse of
      time or both, would result in a default by the Company or any Subsidiary under),
      nor has the Company or any Subsidiary received notice of a claim that it is
      in
      default under or that it is in violation of, any indenture, loan or credit
      agreement or any other agreement or instrument to which it is a party or by
      which it or any of its properties is bound (whether or not such default or
      violation has been waived), (ii) is in violation of any order of any court,
      arbitrator or governmental body or (iii) is or has been in violation of any
      statute, rule or regulation of any governmental authority, including without
      limitation all foreign, federal, state and local laws applicable to its business
      and all such laws that affect the environment, except in each case as could
      not
      have or reasonably be expected to result in a Material Adverse Effect.


     

    (m)  Regulatory
      Permits.
      The
      Company and the Subsidiaries possess all certificates, authorizations and
      permits issued by the appropriate federal, state, local or foreign regulatory
      authorities necessary to conduct their respective businesses, except where
      the
      failure to possess such permits could not reasonably be expected to result
      in a
      Material Adverse Effect (“Material
      Permits”),
      and
      neither the Company nor any Subsidiary has received any notice of proceedings
      relating to the revocation or modification of any Material Permit.

     

    (n)  Title
      to Assets.
      The
      Company and the Subsidiaries have good and marketable title in fee simple to
      all
      real property owned by them and good and marketable title in all personal
      property owned by them that is material to the business of the Company and
      the
      Subsidiaries, in each case free and clear of all Liens, except for Liens as
      do
      not materially affect the value of such property and do not materially interfere
      with the use made and proposed to be made of such property by the Company and
      the Subsidiaries and Liens for the payment of federal, state or other taxes,
      the
      payment of which is neither delinquent nor subject to penalties. Any real
      property and facilities held under lease by the Company and the Subsidiaries
      are
      held by them under valid, subsisting and enforceable leases with which the
      Company and the Subsidiaries are in compliance.

     

    
      
        
        

      

      
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    (o)  Patents
      and Trademarks.
      The
      Company and the Subsidiaries have, or have rights to use, all patents, patent
      applications, trademarks, trademark applications, service marks, trade names,
      trade secrets, inventions, copyrights, licenses and other intellectual property
      rights and similar rights as described in the SEC Reports as necessary or
      material for use in connection with their respective businesses and which the
      failure to so have could have a Material Adverse Effect (collectively, the
      “Intellectual
      Property Rights”).
      Neither the Company nor any Subsidiary has received a notice (written or
      otherwise) that any of the Intellectual Property Rights used by the Company
      or
      any Subsidiary violates or infringes upon the rights of any Person. To the
      knowledge of the Company, all such Intellectual Property Rights are enforceable
      and there is no existing infringement by another Person of any of the
      Intellectual Property Rights. The Company and its Subsidiaries have taken
      reasonable security measures to protect the secrecy, confidentiality and value
      of all of their intellectual properties, except where failure to do so could
      not, individually or in the aggregate, reasonably be expected to have a Material
      Adverse Effect.

     

    (p)  Insurance.
      The
      Company and the Subsidiaries are insured by insurers of recognized financial
      responsibility against such losses and risks and in such amounts as are prudent
      and customary in the businesses in which the Company and the Subsidiaries are
      engaged, including, but not limited to, directors and officers insurance
      coverage at least equal to the aggregate Subscription Amount. Neither the
      Company nor any Subsidiary has any reason to believe that it will not be able
      to
      renew its existing insurance coverage as and when such coverage expires or
      to
      obtain similar coverage from similar insurers as may be necessary to continue
      its business without a significant increase in cost.

     

    (q)  Transactions
      With Affiliates and Employees.
      Except
      as set forth in the SEC Reports, none of the officers or directors of the
      Company and, to the knowledge of the Company, none of the employees of the
      Company is presently a party to any transaction with the Company or any
      Subsidiary (other than for services as employees, officers and directors),
      including any contract, agreement or other arrangement providing for the
      furnishing of services to or by, providing for rental of real or personal
      property to or from, or otherwise requiring payments to or from any officer,
      director or such employee or, to the knowledge of the Company, any entity in
      which any officer, director, or any such employee has a substantial interest
      or
      is an officer, director, trustee or partner, in each case in excess of $120,000
      other than for: (i) payment of salary or consulting fees for services rendered,
      (ii) reimbursement for expenses incurred on behalf of the Company and (iii)
      other employee benefits, including stock option agreements under any stock
      option plan of the Company.

     

    (r)  Sarbanes-Oxley;
      Internal Accounting Controls.
      The
      Company is in material compliance with all provisions of the Sarbanes-Oxley
      Act
      of 2002 which are applicable to it as of the Closing Date. The
      Company and the Subsidiaries maintain a system of internal accounting controls
      sufficient to provide reasonable assurance that: (i) transactions are executed
      in accordance with management’s general or specific authorizations, (ii)
      transactions are recorded as necessary to permit preparation of financial
      statements in conformity with GAAP and to maintain asset accountability, (iii)
      access to assets is permitted only in accordance with management’s general or
      specific authorization, and (iv) the recorded accountability for assets is
      compared with the existing assets at reasonable intervals and appropriate action
      is taken with respect to any differences. The Company has established disclosure
      controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
      15d-15(e)) for the Company and designed such disclosure controls and procedures
      to ensure that information required to be disclosed by the Company in the
      reports it files or submits under the Exchange Act is recorded, processed,
      summarized and reported, within the time periods specified in the Commission’s
      rules and forms. The Company’s certifying officers have evaluated the
      effectiveness of the Company’s disclosure controls and procedures as of the end
      of the period covered by the Company’s most recently filed periodic report under
      the Exchange Act (such date, the “Evaluation
      Date”).
      The
      Company presented in its most recently filed periodic report under the Exchange
      Act the conclusions of the certifying officers about the effectiveness of the
      disclosure controls and procedures based on their evaluations as of the
      Evaluation Date. Since the Evaluation Date, there have been no changes in the
      Company’s internal control over financial reporting (as such term is defined in
      the Exchange Act) that has materially affected, or is reasonably likely to
      materially affect, the Company’s internal control over financial
      reporting.

     

    
      
        
        

      

      
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    (s)  Certain
      Fees.
      Except
      as set forth on Schedule
      3.1(s)
      and
      except for the $300,000 cash merger advisory fee payable to Greenview Capital,
      no brokerage or finder’s fees or commissions are or will be payable by the
      Company to any broker, financial advisor or consultant, finder, placement agent,
      investment banker, bank or other Person with respect to the transactions
      contemplated by the Transaction Documents. The Purchasers shall have no
      obligation with respect to any fees or with respect to any claims made by or
      on
      behalf of other Persons for fees of a type contemplated in this Section that
      may
      be due in connection with the transactions contemplated by the Transaction
      Documents.

     

    (t)  Private
      Placement.
      Assuming the accuracy of the Purchasers’ representations and warranties set
      forth in Section 3.2, no registration under the Securities Act is required
      for
      the offer and sale of the Securities by the Company to the Purchasers as
      contemplated hereby. The issuance and sale of the Securities hereunder does
      not
      contravene the rules and regulations of the Trading Market.

     

    (u)  Investment
      Company.
      The
      Company is not, and is not an Affiliate of, and immediately after receipt of
      payment for the Securities, will not be or be an Affiliate of, an “investment
      company” within the meaning of the Investment Company Act of 1940, as amended.
      The Company shall conduct its business in a manner so that it will not become
      subject to the Investment Company Act of 1940, as amended.

     

    (v)  Registration
      Rights.
      Other
      than each of the Purchasers, no Person has any right to cause the Company to
      effect the registration under the Securities Act of any securities of the
      Company.

     

    
      
        
        

      

      
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    (w)  Listing
      and Maintenance Requirements.
      Except
      as set forth on Schedule
      3.1(w),
      the
      Common Stock is registered pursuant to Section 12(b) or 12(g) of the Exchange
      Act, and the Company has taken no action designed to, or which to its knowledge
      is likely to have the effect of, terminating the registration of the Common
      Stock under the Exchange Act nor has the Company received any notification
      that
      the Commission is contemplating terminating such registration. The Company
      has
      not, in the 12 months preceding the date hereof, received notice from any
      Trading Market on which the Common Stock is or has been listed or quoted to
      the
      effect that the Company is not in compliance with the listing or maintenance
      requirements of such Trading Market. The Company is, and has no reason to
      believe that it will not in the foreseeable future continue to be, in compliance
      with all such listing and maintenance requirements.

     

    (x)  Application
      of Takeover Protections.
      The
      Company and the Board of Directors have taken all necessary action, if any,
      in
      order to render inapplicable any control share acquisition, business
      combination, poison pill (including any distribution under a rights agreement)
      or other similar anti-takeover provision under the Company’s certificate of
      incorporation (or similar charter documents) or the laws of its state of
      incorporation that is or could become applicable to the Purchasers as a result
      of the Purchasers and the Company fulfilling their obligations or exercising
      their rights under the Transaction Documents, including without limitation
      as a
      result of the Company’s issuance of the Securities and the Purchasers’ ownership
      of the Securities.

     

    (y)  Disclosure.
      Except
      with respect to the material terms and conditions of the transactions
      contemplated by the Transaction Documents, the Company confirms that neither
      it
      nor any other Person acting on its behalf has provided any of the Purchasers
      or
      their agents or counsel with any information that it believes constitutes or
      might constitute material, non-public information. The Company understands
      and
      confirms that the Purchasers will rely on the foregoing representation in
      effecting transactions in securities of the Company. Attached hereto as
Schedule
      3.1(y)
      is a
      copy of a substantially final Current Report on Form 8-K (the “Merger
      8-K”)
      that
      the Company will file with the Commission in connection with the Merger on
      or
      prior to the 2nd Trading Day immediately following the date hereof (which
      Current Report contains, among other information, risk factors concerning the
      Company and financial statements required to be filed therewith). All disclosure
      furnished by or on behalf of the Company to the Purchasers regarding the
      Company, its business and the transactions contemplated hereby, including the
      Disclosure Schedules to this Agreement, is true and correct and does not contain
      any untrue statement of a material fact or omit to state any material fact
      necessary in order to make the statements made therein, in light of the
      circumstances under which they were made, not misleading. The press releases
      disseminated by the Company during the twelve months preceding the date of
      this
      Agreement taken as a whole do not contain any untrue statement of a material
      fact or omit to state a material fact required to be stated therein or necessary
      in order to make the statements therein, in light of the circumstances under
      which they were made and when made, not misleading. The Company acknowledges
      and
      agrees that no Purchaser makes or has made any representations or warranties
      with respect to the transactions contemplated hereby other than those
      specifically set forth in Section 3.2 hereof.

     

    
      
        
        

      

      
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    (z)  No
      Integrated Offering.
      Assuming
      the accuracy of the Purchasers’ representations and warranties set forth in
      Section 3.2, neither the Company, nor any of its Affiliates, nor any Person
      acting on its or their behalf has, directly or indirectly, made any offers
      or
      sales of any security or solicited any offers to buy any security, under
      circumstances that would cause this offering of the Securities to be integrated
      with prior offerings by the Company for purposes of (i) the Securities Act
      which
      would require the registration of any such securities under the Securities
      Act,
      or (ii) any applicable shareholder approval provisions of any Trading Market
      on
      which any of the securities of the Company are listed or
      designated.

     

    (aa)  Solvency.
      Based
      on the consolidated financial condition of the Company as of the Closing Date
      after giving effect to the receipt by the Company of the proceeds from the
      sale
      of the Securities hereunder: (i) the fair saleable value of the Company’s assets
      exceeds the amount that will be required to be paid on or in respect of the
      Company’s existing debts and other liabilities (including known contingent
      liabilities) as they mature, (ii) the Company’s assets do not constitute
      unreasonably small capital to carry on its business as now conducted and as
      proposed to be conducted including its capital needs taking into account the
      particular capital requirements of the business conducted by the Company, and
      projected capital requirements and capital availability thereof, and (iii)
      the
      current cash flow of the Company, together with the proceeds the Company would
      receive, were it to liquidate all of its assets, after taking into account
      all
      anticipated uses of the cash, would be sufficient to pay all amounts on or
      in
      respect of its liabilities when such amounts are required to be paid. The
      Company does not intend to incur debts beyond its ability to pay such debts
      as
      they mature (taking into account the timing and amounts of cash to be payable
      on
      or in respect of its debt). The Company has no knowledge of any facts or
      circumstances which lead it to believe that it will file for reorganization
      or
      liquidation under the bankruptcy or reorganization laws of any jurisdiction
      within one year from the Closing Date. Schedule
      3.1(aa)
      sets
      forth as of the date hereof all outstanding secured and unsecured Indebtedness
      of the Company or any Subsidiary, or for which the Company or any Subsidiary
      has
      commitments. For the purposes of this Agreement, “Indebtedness”
means
      (x) any liabilities for borrowed money or amounts owed in excess of $50,000
      (other than trade accounts payable incurred in the ordinary course of business),
      (y) all guaranties, endorsements and other contingent obligations in respect
      of
      indebtedness of others, whether or not the same are or should be reflected
      in
      the Company’s balance sheet (or the notes thereto), except guaranties by
      endorsement of negotiable instruments for deposit or collection or similar
      transactions in the ordinary course of business; and (z) the present value
      of
      any lease payments
      in excess of $50,000 due under leases required to be capitalized in accordance
      with GAAP. Neither
      the Company nor any Subsidiary is in default with respect to any
      Indebtedness.

     

    (bb)  Tax
      Status.
      Except
      for matters that would not, individually or in the aggregate, have or reasonably
      be expected to result in a Material Adverse Effect, the Company and each
      Subsidiary has filed all necessary federal, state and foreign income and
      franchise tax returns and has paid or accrued all taxes shown as due thereon,
      and the Company has no knowledge of a tax deficiency which has been asserted
      or
      threatened against the Company or any Subsidiary.

     

    
      
        
        

      

      
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    (cc)  No
      General Solicitation.
      Neither
      the Company nor any person acting on behalf of the Company has offered or sold
      any of the Securities by any form of general solicitation or general
      advertising. The Company has offered the Securities for sale only to the
      Purchasers and certain other “accredited investors” within the meaning of Rule
      501 under the Securities Act.

     

    (dd)  Foreign
      Corrupt Practices.
      Neither
      the Company, nor to the knowledge of the Company, any agent or other person
      acting on behalf of the Company, has: (i) directly or indirectly, used any
      funds
      for unlawful contributions, gifts, entertainment or other unlawful expenses
      related to foreign or domestic political activity, (ii) made any unlawful
      payment to foreign or domestic government officials or employees or to any
      foreign or domestic political parties or campaigns from corporate funds, (iii)
      failed to disclose fully any contribution made by the Company (or made by any
      person acting on its behalf of which the Company is aware) which is in violation
      of law or (iv) violated in any material respect any provision of the Foreign
      Corrupt Practices Act of 1977, as amended.

     

    (ee)  Accountants.
      The
      Company’s accounting firm is set forth on Schedule
      3.1(ee)
      of the
      Disclosure Schedules. To the knowledge and belief of the Company, such
      accounting firm: (i) is a registered public accounting firm as required by
      the
      Exchange Act and (ii) shall express its opinion with respect to the financial
      statements to be included in the Company’s Annual Report for the year ended
      December 31, 2007.

     

    (ff)  Seniority.
      As of
      the Closing Date, no Indebtedness or other claim against the Company is senior
      to the Preferred Stock in right of payment, whether with respect to interest
      or
      upon liquidation or dissolution, or otherwise, other than indebtedness secured
      by purchase money security interests (which is senior only as to underlying
      assets covered thereby) and capital lease obligations (which is senior only
      as
      to the property covered thereby).

     

    (gg)  No
      Disagreements with Accountants and Lawyers.
      There
      are no disagreements of any kind presently existing, or reasonably anticipated
      by the Company to arise, between the Company and the accountants and lawyers
      formerly or presently employed by the Company and the Company is current with
      respect to any fees owed to its accountants and lawyers which could affect
      the
      Company’s ability to perform any of its obligations under any of the Transaction
      Documents.

     

    (hh)  Acknowledgment
      Regarding Purchasers’ Purchase of Securities.
      The
      Company acknowledges and agrees that each of the Purchasers is acting solely
      in
      the capacity of an arm’s length purchaser with respect to the Transaction
      Documents and the transactions contemplated thereby. Except as set forth on
      Schedule
      3.1(hh)
      attached
      hereto, the Company further acknowledges that no Purchaser is acting as a
      financial advisor or fiduciary of the Company (or in any similar capacity)
      with
      respect to the Transaction Documents and the transactions contemplated thereby
      and any advice given by any Purchaser or any of their respective representatives
      or agents in connection with the Transaction Documents and the transactions
      contemplated thereby is merely incidental to the Purchasers’ purchase of the
      Securities. The Company further represents to each Purchaser that the Company’s
      decision to enter into this Agreement and the other Transaction Documents has
      been based solely on the independent evaluation of the transactions contemplated
      hereby by the Company and its representatives. 

     

    
      
        
        

      

      
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    (ii)  Acknowledgment
      Regarding Purchasers’ Trading Activity.
      Notwithstanding anything in this Agreement or elsewhere herein to the contrary
      (except for Sections 3.2(f) and 4.15 hereof), it is understood and acknowledged
      by the Company that: (i) none of the Purchasers has been asked to agree by
      the
      Company, nor has any Purchaser agreed, to desist from purchasing or selling,
      long and/or short, securities of the Company, or “derivative” securities based
      on securities issued by the Company or to hold the Securities for any specified
      term, (ii) past or future open market or other transactions by any Purchaser,
      specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement
      transactions, may negatively impact the market price of the Company’s
      publicly-traded securities, (iii) any Purchaser, and counter-parties in
“derivative” transactions to which any such Purchaser is a party, directly or
      indirectly, may presently have a “short” position in the Common Stock and (iv)
      each Purchaser shall not be deemed to have any affiliation with or control
      over
      any arm’s length counter-party in any “derivative” transaction. The
      Company further understands and acknowledges that (y) one or more Purchasers
      may
      engage in hedging activities at various times during the period that the
      Securities are outstanding, including, without limitation, during the periods
      that the value of the Underlying Shares deliverable with respect to Securities
      are being determined, and (z) such hedging activities (if any) could reduce
      the
      value of the existing stockholders’ equity interests in the Company at and after
      the time that the hedging activities are being conducted.  The Company
      acknowledges that such aforementioned hedging activities do not constitute
      a
      breach of any of the Transaction Documents.

     

    (jj)  Regulation
      M Compliance. 
      The Company has not, and to its knowledge no one acting on its behalf has,
      (i)
      taken, directly or indirectly, any action designed to cause or to result in
      the
      stabilization or manipulation of the price of any security of the Company to
      facilitate the sale or resale of any of the Securities, (ii) sold, bid for,
      purchased, or paid any compensation for soliciting purchases of, any of the
      Securities or (iii) paid or agreed to pay to any Person any compensation for
      soliciting another to purchase any other securities of the Company, other than,
      in the case of clauses (ii) and (iii), compensation paid to the Company’s
      placement agent in connection with the placement of the Securities.

     

    (kk)  Manufacturing
      and Marketing Rights.
      Neither
      the Company nor its Subsidiaries have granted rights to manufacture, produce,
      assemble, license, market, or sell its products to any other Person and is
      not
      bound by any agreement that affects the Company’s or its Subsidiaries’ exclusive
      right to develop, manufacture, assemble, distribute, market or sell its
      respective products.

     

    (ll)  Obligations
      of Management.
      Each
      officer and key employee of the Company and its Subsidiaries is currently
      devoting substantially all of his or her business time to the conduct of
      business of the Company and its Subsidiaries. Neither the Company nor any of
      its
      Subsidiaries is aware that any officer or key employee of the Company or any
      Subsidiary is planning to work less than full time at the Company or any
      Subsidiary, as applicable, in the future. No officer or key employee is the
      currently working or, to the Company’s knowledge, plans to work for a
      competitive enterprise, whether or not such officer of key employee is or will
      be compensated by such enterprise.

     

    
      
        
        

      

      
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    (mm)  Minute
      Books.
      The
      minute books of the Company and its Subsidiaries made available to the
      Purchasers contain a complete summary of all meetings of directors and
      stockholders since the time of incorporation.

     

    (nn)  Elections.
      Except
      as set forth on Schedule
      3.1(nn)
      attached hereto, to the Company’s knowledge, all elections and notices permitted
      by Section 83(b) of the Internal Revenue Code and any analogous provisions
      of
      applicable state tax laws have been timely filed by all employees who have
      purchased shares of the Common Stock under agreements that provide for the
      vesting of such shares of Common Stock.

     

    (oo)  Accounts
      Receivable.
      All
      accounts receivable of the Company and its Subsidiaries that are reflected
      on
      the Company’s and its Subsidiaries’ balance sheets or interim balance sheets or
      on the accounting records of the Company and its Subsidiaries as of the Closing
      Date (collectively, the “Accounts
      Receivable”)
      represent or will represent valid obligations arising from sales actually made
      or services actually performed in the ordinary course of business. Unless paid
      prior to the Closing Date, the Accounts Receivable are or will be as of the
      Closing Date current and collectible net of the respective reserves shown on
      the
      balance sheet or interim balance sheet or on the accounting records of the
      Company and its Subsidiaries as of the Closing Date (which reserves are adequate
      and calculated consistent with past practice and, in the case of the reserve
      as
      of the Closing Date, will not represent a greater percentage of the Accounts
      Receivable as of the Closing Date than the reserve reflected in the interim
      balance sheet represented of the Accounts Receivable reflected therein and
      will
      not represent a material adverse change in the composition of such Accounts
      Receivable in terms of aging). Subject to such reserves, each of the Accounts
      Receivable either has been or will be collected in full without any set-off,
      within ninety days after the day on which it must becomes due and payable.
      There
      is no contest, claim, or right of set-off, other than returns in the ordinary
      course of business, under any agreement and/or contract with any obligor of
      an
      Accounts Receivable relating to the amount or validity of such Accounts
      Receivable. Schedule
      3.1(oo)
      contains
      a complete and accurate list of all Accounts Receivable as of the date of the
      interim balance sheet, which list sets forth the aging of such Accounts
      Receivable.

     

    (pp)  Inventory.
      The
      Company and the Subsidiaries do not maintain an inventory.

     

    (qq)  Returns
      and Complaints.
      Neither
      the Company nor any Subsidiary has received any customer complaints concerning
      its respective products and/or services, nor has it had any of its products
      returned by a purchaser thereof, other than minor, nonrecurring warranty
      problems. 

     

    
      
        
        

      

      
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    (rr)  Employee
      Benefits.
      Except
      as set forth on Schedule
      3.1(rr),
      neither
      the Company nor any Subsidiary has (nor for the two years preceding the date
      hereof has had) any plans which are subject to ERISA. “ERISA”
means
      the Employee Retirement Income Security Act of 1974 or any successor law and
      the
      regulations and rules issued pursuant to that act or any successor
      law.

     

    3.2 Representations
      and Warranties of the Purchasers.
      Each
      Purchaser, for itself and for no other Purchaser, hereby represents and warrants
      as of the date hereof and as of the Closing Date to the Company as
      follows:

     

    (a) Organization;
      Authority.
      Such
      Purchaser is an entity duly organized, validly existing and in good standing
      under the laws of the jurisdiction of its organization with full right,
      corporate or partnership power and authority to enter into and to consummate
      the
      transactions contemplated by the Transaction Documents and otherwise to carry
      out its obligations hereunder and thereunder. The execution and delivery of
      the
      Transaction Documents and performance by such Purchaser of the transactions
      contemplated by the Transaction Documents have been duly authorized by all
      necessary corporate or similar action on the part of such Purchaser. Each
      Transaction Document to which it is a party has been duly executed by such
      Purchaser, and when delivered by such Purchaser in accordance with the terms
      hereof, will constitute the valid and legally binding obligation of such
      Purchaser, enforceable against it in accordance with its terms, except: (i)
      as
      limited by general equitable principles and applicable bankruptcy, insolvency,
      reorganization, moratorium and other laws of general application affecting
      enforcement of creditors’ rights generally, (ii) as limited by laws relating to
      the availability of specific performance, injunctive relief or other equitable
      remedies and (iii) insofar as indemnification and contribution provisions may
      be
      limited by applicable law.

     

    (b) Own
      Account.
      Such
      Purchaser understands that the Securities are “restricted securities” and have
      not been registered under the Securities Act or any applicable state securities
      law and is acquiring the Securities as principal for its own account and not
      with a view to or for distributing or reselling such Securities or any part
      thereof in violation of the Securities Act or any applicable state securities
      law, has no present intention of distributing any of such Securities in
      violation of the Securities Act or any applicable state securities law and
      has
      no direct or indirect arrangement or understandings with any other persons
      to
      distribute or regarding the distribution of such Securities (this representation
      and warranty not limiting such Purchaser’s right to sell the Securities pursuant
      to the Registration Statement or otherwise in compliance with applicable federal
      and state securities laws) in violation of the Securities Act or any applicable
      state securities law. Such Purchaser is acquiring the Securities hereunder
      in
      the ordinary course of its business.

     

    (c) Purchaser
      Status.
      At the
      time such Purchaser was offered the Securities, it was, and as of the date
      hereof it is, and on each date on which it converts any shares of Preferred
      Stock or exercises any Warrants, it will be either: (i) an “accredited investor”
as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the
      Securities Act or (ii) a “qualified institutional buyer” as defined in Rule
      144A(a) under the Securities Act. Such Purchaser is not required to be
      registered as a broker-dealer under Section 15 of the Exchange Act.

     

    
      
        
        

      

      
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    (d) Experience
      of Such Purchaser.
      Such
      Purchaser, either alone or together with its representatives, has such
      knowledge, sophistication and experience in business and financial matters
      so as
      to be capable of evaluating the merits and risks of the prospective investment
      in the Securities, and has so evaluated the merits and risks of such investment.
      Such Purchaser is able to bear the economic risk of an investment in the
      Securities and, at the present time, is able to afford a complete loss of such
      investment.

     

    (e)  General
      Solicitation.
      Such
      Purchaser is not purchasing the Securities as a result of any advertisement,
      article, notice or other communication regarding the Securities published in
      any
      newspaper, magazine or similar media or broadcast over television or radio
      or
      presented at any seminar or any other general solicitation or general
      advertisement.

     

    (f)  Short
      Sales and Confidentiality Prior To The Date Hereof.
      Other
      than consummating the transactions contemplated hereunder, such Purchaser has
      not directly or indirectly, nor has any Person acting on behalf of or pursuant
      to any understanding with such Purchaser, executed any purchases or sales,
      including Short Sales, of the securities of the Company during the period
      commencing from
      the time
      that such Purchaser first received a term sheet (written or oral) from the
      Company or any other Person representing the Company setting forth the material
      terms of the transactions contemplated hereunder until the date hereof
(“Discussion
      Time”).
      Notwithstanding
      the foregoing, in the case of a Purchaser that is a multi-managed investment
      vehicle whereby separate portfolio managers manage separate portions of such
      Purchaser’s assets and the portfolio managers have no direct knowledge of the
      investment decisions made by the portfolio managers managing other portions
      of
      such Purchaser’s assets, the representation set forth above shall only apply
      with respect to the portion of assets managed by the portfolio manager that
      made
      the investment decision to purchase the Securities covered by this Agreement.
      Other than to other Persons party to this Agreement, such Purchaser has
      maintained the confidentiality of all disclosures made to it in connection
      with
      this transaction (including the existence and terms of this
      transaction).

     

    ARTICLE
      IV.

    OTHER
      AGREEMENTS OF THE PARTIES

     

    4.1 Transfer
      Restrictions.

     

    (a)  The
      Securities may only be disposed of in compliance with state and federal
      securities laws. In connection with any transfer of Securities other than
      pursuant to an effective registration statement or Rule 144, to the Company
      or
      to an Affiliate of a Purchaser or in connection with a pledge as contemplated
      in
      Section 4.1(b), the Company may require the transferor thereof to provide to
      the
      Company an opinion of counsel selected by the transferor and reasonably
      acceptable to the Company, the form and substance of which opinion shall be
      reasonably satisfactory to the Company, to the effect that such transfer does
      not require registration of such transferred Securities under the Securities
      Act. As a condition of transfer, any such transferee shall agree in writing
      to
      be bound by the terms of this Agreement and the Registration Rights Agreement
      and shall have the rights of a Purchaser under this Agreement and the
      Registration Rights Agreement.

     

    
      
        
        

      

      
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    (b)  The
      Purchasers agree to the imprinting, so long as is required by this Section
      4.1,
      of a legend on any of the Securities in the following form:

     

    [NEITHER]
      THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS [EXERCISABLE]
      [CONVERTIBLE]] HAS [NOT] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE
      COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
      EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
      “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
      TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT
      TO
      AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
      REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
      APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
      TO
      THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
      ACCEPTABLE TO THE COMPANY. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON
      [EXERCISE] [CONVERSION] OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH
      A
      BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH
      A
      FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE 501(a)
      UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH SECURITIES.

     

    The
      Company acknowledges and agrees that a Purchaser may from time to time pledge
      pursuant to a bona fide margin agreement with a registered broker-dealer or
      grant a security interest in some or all of the Securities to a financial
      institution that is an “accredited investor” as defined in Rule 501(a) under the
      Securities Act and who agrees to be bound by the provisions of this Agreement
      and the Registration Rights Agreement and, if required under the terms of such
      arrangement, such Purchaser may transfer pledged or secured Securities to the
      pledgees or secured parties. Such a pledge or transfer would not be subject
      to
      approval of the Company and no legal opinion of legal counsel of the pledgee,
      secured party or pledgor shall be required in connection therewith. Further,
      no
      notice shall be required of such pledge. At the appropriate Purchaser’s expense,
      the Company will execute and deliver such reasonable documentation as a pledgee
      or secured party of Securities may reasonably request in connection with a
      pledge or transfer of the Securities, including, if the Securities are subject
      to registration pursuant to the Registration Rights Agreement, the preparation
      and filing of any required prospectus supplement under Rule 424(b)(3) under
      the
      Securities Act or other applicable provision of the Securities Act to
      appropriately amend the list of Selling Stockholders (as defined in the
      Registration Rights Agreement) thereunder.

     

    
      
        
        

      

      
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    (c)  Certificates
      evidencing the Underlying Shares shall not contain any legend (including the
      legend set forth in Section 4.1(b) hereof): (i) while a registration statement
      (including the Registration Statement) covering the resale of such security
      is
      effective under the Securities Act, (ii) following any sale of such Underlying
      Shares pursuant to Rule 144, (iii) if such Underlying Shares are eligible for
      sale under Rule 144, without the requirement for the Company to be in compliance
      with the current public information required under Rule 144 as to such
      Underlying Shares and without volume or manner-of-sale restrictions or (iv)
      if
      such legend is not required under applicable requirements of the Securities
      Act
      (including judicial interpretations and pronouncements issued by the staff
      of
      the Commission). The Company shall cause its counsel to issue a legal opinion
      to
      the Transfer Agent promptly after the Effective Date if required by the Transfer
      Agent to effect the removal of the legend hereunder. If all or any shares of
      Preferred Stock are converted or any portion of a Warrant is exercised at a
      time
      when there is an effective registration statement to cover the resale of the
      Underlying Shares, or if such Underlying Shares may be sold under Rule 144,
      without the requirement for the Company to be in compliance with the current
      public information required under Rule 144 as to such Underlying Shares and
      without volume or manner-of-sale restrictions or if such legend is not otherwise
      required under applicable requirements of the Securities Act (including judicial
      interpretations and pronouncements issued by the staff of the Commission) then
      such Underlying Shares shall be issued free of all legends. The Company agrees
      that following the Effective Date or at such time as such legend is no longer
      required under this Section 4.1(c), it will, no later than three Trading Days
      following the delivery by a Purchaser to the Company or the Transfer Agent
      of a
      certificate representing Underlying Shares, as applicable, issued with a
      restrictive legend (such third Trading Day, the “Legend
      Removal Date”),
      deliver or cause to be delivered to such Purchaser a certificate representing
      such shares that is free from all restrictive and other legends. The Company
      may
      not make any notation on its records or give instructions to the Transfer Agent
      that enlarge the restrictions on transfer set forth in this Section 4.
      Certificates for Underlying Shares subject to legend removal hereunder shall
      be
      transmitted by the Transfer Agent to the Purchaser by crediting the account
      of
      the Purchaser’s prime broker with the Depository Trust Company System as
      directed by such Purchaser.

     

    (d)  In
      addition to such Purchaser’s other available remedies, the Company shall pay to
      a Purchaser, in cash, as partial liquidated damages and not as a penalty, for
      each $1,000 of Underlying Shares (based on the VWAP of the Common Stock on
      the
      date such Securities are submitted to the Transfer Agent) delivered for removal
      of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day
      (increasing to $20 per Trading Day 5 Trading Days after such damages have begun
      to accrue) for each Trading Day after the second Trading Day after the Legend
      Removal Date until such certificate is delivered without a legend. Nothing
      herein shall limit such Purchaser’s right to pursue actual damages for the
      Company’s failure to deliver certificates representing any Securities as
      required by the Transaction Documents, and such Purchaser shall have the right
      to pursue all remedies available to it at law or in equity including, without
      limitation, a decree of specific performance and/or injunctive
      relief.

     

    
      
        
        

      

      
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    (e)  Each
      Purchaser, severally and not jointly with the other Purchasers, agrees that
      such
      Purchaser will sell any Securities pursuant to either the registration
      requirements of the Securities Act, including any applicable prospectus delivery
      requirements, or an exemption therefrom, and that if Securities are sold
      pursuant to a Registration Statement, they will be sold in compliance with
      the
      plan of distribution set forth therein, and acknowledges that the removal of
      the
      restrictive legend from certificates representing Securities as set forth in
      this Section 4.1 is predicated upon the Company’s reliance upon this
      understanding.

     

    4.2
      Acknowledgment
      of Dilution.
      The
      Company acknowledges that the issuance of the Securities may result in dilution
      of the outstanding shares of Common Stock, which dilution may be substantial
      under certain market conditions. The Company further acknowledges that its
      obligations under the Transaction Documents, including, without limitation,
      its
      obligation to issue the Underlying Shares pursuant to the Transaction Documents,
      are unconditional and absolute and not subject to any right of set off,
      counterclaim, delay or reduction, regardless of the effect of any such dilution
      or any claim the Company may have against any Purchaser and regardless of the
      dilutive effect that such issuance may have on the ownership of the other
      stockholders of the Company.

     

    4.3
      Furnishing
      of Information; Public Information.
      

     

    (a)  If
      the
      Common Stock is not registered under Section 12(b) or 12(g) of the Exchange
      Act
      on the date hereof, the Company agrees to cause the Common Stock to be
      registered under Section 12(g) of the Exchange Act on or before the 12 month
      anniversary of the date hereof. Until the earliest of the time that no Purchaser
      owns Securities, the Company covenants to maintain the registration of the
      Common Stock under Section 12(b) or 12(g) of the Exchange Act and to timely
      file
      (or obtain extensions in respect thereof and file within the applicable grace
      period) all reports required to be filed by the Company after the date hereof
      pursuant to the Exchange Act. As long as any Purchaser owns Securities, if
      the
      Company is not required to file reports pursuant to the Exchange Act, it will
      prepare and furnish to the Purchasers and make publicly available in accordance
      with Rule 144(c) such information as is required for the Purchasers to sell
      the
      Securities under Rule 144. The Company further covenants that it will take
      such
      further action as any holder of Securities may reasonably request, to the extent
      required from time to time to enable such Person to sell such Securities without
      registration under the Securities Act within the requirements of the exemption
      provided by Rule 144. 

     

    
      
        
        

      

      
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    (b)  At
      any
      time during the period commencing from the one (1) year anniversary of the
      filing date of the Merger 8-K and ending at such time that all of the Securities
      may be sold without the requirement for the Company to be in compliance with
      Rule 144(c)(1) and otherwise without restriction or limitation pursuant to
      Rule
      144, if the Company shall fail for any reason to satisfy the current public
      information requirement under Rule 144(c) (a “Public
      Information Failure”)
      then,
      in addition to such Purchaser’s other available remedies, the Company shall pay
      to a Purchaser, in cash, as partial liquidated damages and not as a penalty,
      by
      reason of any such delay in or reduction of its ability to sell the Securities,
      an amount in cash equal to two percent (2.0%) of the aggregate Subscription
      Amount of such Purchaser’s Securities on the day of a Public Information Failure
      and on every thirtieth (30th) day (pro rated for periods totaling less than
      thirty days) thereafter until the earlier of (a) the date such Public
      Information Failure is cured and (b) such time that such public information
      is
      no longer required for the Purchasers to transfer the Underlying Shares pursuant
      to Rule 144. The payments to which a Purchaser shall be entitled pursuant to
      this Section 4.3(b) are referred to herein as “Public
      Information Failure Payments.”
Public
      Information Failure Payments shall be paid on the earlier of (i) the last day
      of
      the calendar month during which such Public Information Failure Payments are
      incurred and (ii) the third (3rd) Business Day after the event or failure giving
      rise to the Public Information Failure Payments is cured. In the event the
      Company fails to make Public Information Failure Payments in a timely manner,
      such Public Information Failure Payments shall bear interest at the rate of
      1.5%
      per month (prorated for partial months) until paid in full. Nothing herein
      shall
      limit such Purchaser’s right to pursue actual damages for the Public Information
      Failure, and such Purchaser shall have the right to pursue all remedies
      available to it at law or in equity including, without limitation, a decree
      of
      specific performance and/or injunctive relief.

     

    4.4
      Integration.
      The
      Company shall not sell, offer for sale or solicit offers to buy or otherwise
      negotiate in respect of any security (as defined in Section 2 of the Securities
      Act) that would be integrated with the offer or sale of the Securities to the
      Purchasers in a manner that would require the registration under the Securities
      Act of the sale of the Securities to the Purchasers or that would be integrated
      with the offer or sale of the Securities for purposes of the rules and
      regulations of any Trading Market.

     

    4.5
      Conversion
      and Exercise Procedures.
      Each of
      the form of Notice of Exercise included in the Warrants and the form of Notice
      of Conversion included in the Certificate of Designation set forth the totality
      of the procedures required of the Purchasers in order to exercise the Warrants
      or convert the Preferred Stock. No additional legal opinion, other information
      or instructions shall be required of the Purchasers to exercise their Warrants
      or convert their Preferred Stock. The Company shall honor exercises of the
      Warrants and conversions of the Preferred Stock and shall deliver Underlying
      Shares in accordance with the terms, conditions and time periods set forth
      in
      the Transaction Documents.

     

    4.6
      Securities
      Laws Disclosure;
      Publicity.
      The
      Company shall, by 8:30 a.m. (New York City time) on the second Trading Day
      immediately following the date hereof, issue a Current Report on Form 8-K,
      disclosing the material terms of the transactions contemplated hereby and
      including the Transaction Documents as exhibits thereto. The Company and each
      Purchaser shall consult with each other in issuing any other press releases
      with
      respect to the transactions contemplated hereby, and neither the Company nor
      any
      Purchaser shall issue any such press release nor otherwise make any such public
      statement without the prior consent of the Company, with respect to any press
      release of any Purchaser, or, until the first anniversary of the Closing,
      without the prior consent of each Purchaser, with respect to any press release
      of the Company, which consent shall not unreasonably be withheld or delayed,
      except if such disclosure is required by law, in which case the disclosing
      party
      shall promptly provide the other party with prior notice of such public
      statement or communication. Notwithstanding the foregoing, the Company shall
      not
      publicly disclose the name of any Purchaser, or include the name of any
      Purchaser in any filing with the Commission or any regulatory agency or Trading
      Market, without the prior written consent of such Purchaser, except: (a) as
      required by federal securities law in connection with (i) any registration
      statement contemplated by the Registration Rights Agreement and (ii) the filing
      of final Transaction Documents (including signature pages thereto) with the
      Commission and (b) to the extent such disclosure is required by law or Trading
      Market regulations, in which case the Company shall provide the Purchasers
      with
      prior notice of such disclosure permitted under this clause (b).

     

    
      
        
        

      

      
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    4.7 Shareholder
      Rights Plan.
      No
      claim will be made or enforced by the Company or, with the consent of the
      Company, any other Person, that any Purchaser is an “Acquiring Person” under any
      control share acquisition, business combination, poison pill (including any
      distribution under a rights agreement) or similar anti-takeover plan or
      arrangement in effect or hereafter adopted by the Company, or that any Purchaser
      could be deemed to trigger the provisions of any such plan or arrangement,
      by
      virtue of receiving Securities under the Transaction Documents or under any
      other agreement between the Company and the Purchasers.

     

    4.8
      Non-Public
      Information.
      Except
      with respect to the material terms and conditions of the transactions
      contemplated by the Transaction Documents, the Company covenants and agrees
      that
      neither it, nor any other Person acting on its behalf, will provide any
      Purchaser or its agents or counsel with any information that the Company
      believes constitutes material non-public information, unless prior thereto
      such
      Purchaser shall have executed a written agreement regarding the confidentiality
      and use of such information. The Company understands and confirms that each
      Purchaser shall be relying on the foregoing covenant in effecting transactions
      in securities of the Company.

     

    4.9 Use
      of
      Proceeds.
      Except
      as set forth on Schedule
      4.9
      attached
      hereto, the Company shall use the net proceeds from the sale of the Securities
      hereunder for working capital purposes and shall not use such proceeds for:
      (a)
      the satisfaction of any portion of the Company’s debt (other than payment of
      trade payables in the ordinary course of the Company’s business and prior
      practices or costs incident to this transaction), (b) the redemption of any
      Common Stock or Common Stock Equivalents or (c) the settlement of any
      outstanding litigation. 

     

    4.10 Indemnification
      of Purchasers.
      Subject
      to the provisions of this Section 4.10, the Company will indemnify and hold
      each
      Purchaser and its directors, officers, shareholders, members, partners,
      employees and agents (and any other Persons with a functionally equivalent
      role
      of a Person holding such titles notwithstanding a lack of such title or any
      other title), each Person who controls such Purchaser (within the meaning of
      Section 15 of the Securities Act and Section 20 of the Exchange Act), and the
      directors, officers, shareholders, agents, members, partners or employees (and
      any other Persons with a functionally equivalent role of a Person holding such
      titles notwithstanding a lack of such title or any other title) of such
      controlling persons (each, a “Purchaser
      Party”)
      harmless from any and all losses, liabilities, obligations, claims,
      contingencies, damages, costs and expenses, including all judgments, amounts
      paid in settlements, court costs and reasonable attorneys’ fees and costs of
      investigation that any such Purchaser Party may suffer or incur as a result
      of
      or relating to (a) any breach of any of the representations, warranties,
      covenants or agreements made by the Company in this Agreement or in the other
      Transaction Documents or (b) any action instituted against a Purchaser in any
      capacity, or any of them or their respective Affiliates, by any stockholder
      of
      the Company who is not an Affiliate of such Purchaser, with respect to any
      of
      the transactions contemplated by the Transaction Documents (unless such action
      is based upon a breach of such Purchaser’s representations, warranties or
      covenants under the Transaction Documents or any agreements or understandings
      such Purchaser may have with any such stockholder or any violations by the
      Purchaser of state or federal securities laws or any conduct by such Purchaser
      which constitutes fraud, gross negligence, willful misconduct or malfeasance).
      If any action shall be brought against any Purchaser Party in respect of which
      indemnity may be sought pursuant to this Agreement, such Purchaser Party shall
      promptly notify the Company in writing, and the Company shall have the right
      to
      assume the defense thereof with counsel of its own choosing reasonably
      acceptable to the Purchaser Party. Any Purchaser Party shall have the right
      to
      employ separate counsel in any such action and participate in the defense
      thereof, but the fees and expenses of such counsel shall be at the expense
      of
      such Purchaser Party except to the extent that (i) the employment thereof has
      been specifically authorized by the Company in writing, (ii) the Company has
      failed after a reasonable period of time to assume such defense and to employ
      counsel or (iii) in such action there is, in the reasonable opinion of such
      separate counsel, a material conflict on any material issue between the position
      of the Company and the position of such Purchaser Party, in which case the
      Company shall be responsible for the reasonable fees and expenses of no more
      than one such separate counsel. The Company will not be liable to any Purchaser
      Party under this Agreement (y) for any settlement by a Purchaser Party effected
      without the Company’s prior written consent, which shall not be unreasonably
      withheld or delayed; or (z) to the extent, but only to the extent that a loss,
      claim, damage or liability is attributable to any Purchaser Party’s breach of
      any of the representations, warranties, covenants or agreements made by such
      Purchaser Party in this Agreement or in the other Transaction
      Documents.

     

    
      
        

      

      2
        NTD:
        Please insert Schedule B of the term sheet to Schedule 4.9 of this Agreement
        to
        reflect the Use of Proceeds.

    

     

    
      
        
        

      

      
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    4.11 Reservation
      and Listing of Securities.

     

    (a)  The
      Company shall maintain a reserve from its duly authorized shares of Common
      Stock
      for issuance pursuant to the Transaction Documents in such amount as may then
      be
      required to fulfill its obligations in full under the Transaction Documents.
      

     

    (b)  If,
      on
      any date, the number of authorized but unissued (and otherwise unreserved)
      shares of Common Stock is less than 130% of (i) the Required Minimum on
      such date, minus (ii) the number of shares of Common Stock previously issued
      pursuant to the Transaction Documents, then the Board of Directors shall use
      commercially reasonable efforts to amend the Company’s certificate or articles
      of incorporation to increase the number of authorized but unissued shares of
      Common Stock to at least the Required Minimum at such time (minus the number
      of
      shares of Common Stock previously issued pursuant to the Transaction Documents),
      as soon as possible and in any event not later than the 75th
      day
      after such date; provided that the Company will not be required at any time
      to
      authorize a number of shares of Common Stock greater than the maximum remaining
      number of shares of Common Stock that could possibly be issued after such time
      pursuant to the Transaction Documents.

     

    
      
        
        

      

      
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    (c)  The
      Company shall, if applicable: (i) in the time and manner required by the
      principal Trading Market, prepare and file with such Trading Market an
      additional shares listing application covering a number of shares of Common
      Stock at least equal to the Required Minimum on the date of such application,
      (ii) take all steps necessary to cause such shares of Common Stock to be
      approved for listing or quotation on such Trading Market as soon as possible
      thereafter, (iii) provide to the Purchasers evidence of such listing or
      quotation and (iv) maintain the listing or quotation of such Common Stock on
      any
      date at least equal to the Required Minimum on such date on such Trading Market
      or another Trading Market. 

    


    4.12 Participation
      in Future Financing.
      

     

    (a)  From
      the
      date hereof until the date that is the Preferred Stock is no longer outstanding,
      upon any issuance by the Company or any of its Subsidiaries of Common Stock,
      Common Stock Equivalents for cash consideration, Indebtedness (or a combination
      of units hereof) (a “Subsequent
      Financing”),
      each
      Purchaser shall have the right to participate in up to an amount of the
      Subsequent Financing equal to 100% of the Subsequent Financing (the
“Participation
      Maximum”)
      on the
      same terms, conditions and price provided for in the Subsequent
      Financing.

    


    (b)  At
      least
      5 Trading Days prior to the closing of the Subsequent Financing, the Company
      shall deliver to each Purchaser a written notice of its intention to effect
      a
      Subsequent Financing (“Pre-Notice”),
      which
      Pre-Notice shall ask such Purchaser if it wants to review the details of such
      financing (such additional notice, a “Subsequent
      Financing Notice”).
      Upon
      the request of a Purchaser, and only upon a request by such Purchaser, for
      a
      Subsequent Financing Notice, the Company shall promptly, but no later than
      1
      Trading Day after such request, deliver a Subsequent Financing Notice to such
      Purchaser. The Subsequent Financing Notice shall describe in reasonable detail
      the proposed terms of such Subsequent Financing, the amount of proceeds intended
      to be raised thereunder and the Person or Persons through or with whom such
      Subsequent Financing is proposed to be effected and shall include a term sheet
      or similar document relating thereto as an attachment. 

    


    (c)  Any
      Purchaser desiring to participate in such Subsequent Financing must provide
      written notice to the Company by not later than 5:30 p.m. (New York City time)
      on the 5th
      Trading
      Day after all of the Purchasers have received the Pre-Notice that the Purchaser
      is willing to participate in the Subsequent Financing, the amount of the
      Purchaser’s participation, and that the Purchaser has such funds ready, willing,
      and available for investment on the terms set forth in the Subsequent Financing
      Notice. If the Company receives no notice from a Purchaser as of such
      5th
      Trading
      Day, such Purchaser shall be deemed to have notified the Company that it does
      not elect to participate. 

     

    
      
        
        

      

      
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    (d)  If
      by
      5:30 p.m. (New York City time) on the 5th
      Trading
      Day after all of the Purchasers have received the Pre-Notice, notifications
      by
      the Purchasers of their willingness to participate in the Subsequent Financing
      (or to cause their designees to participate) is, in the aggregate, less than
      the
      total amount of the Subsequent Financing, then the Company may effect the
      remaining portion of such Subsequent Financing on the terms and with the Persons
      set forth in the Subsequent Financing Notice. 

    


    (e)  If
      by
      5:30 p.m. (New York City time) on the 5th Trading Day after all of the
      Purchasers have received the Pre-Notice, the Company receives responses to
      a
      Subsequent Financing Notice from Purchasers seeking to purchase more than the
      aggregate amount of the Participation Maximum, each such Purchaser shall have
      the right to purchase its Pro Rata Portion (as defined below) of the
      Participation Maximum. “Pro
      Rata Portion”
means
      the ratio of (x) the Subscription Amount of Securities purchased on the Closing
      Date by a Purchaser participating under this Section 4.12 and (y) the sum of
      the
      aggregate Subscription Amounts of Securities purchased on the Closing Date
      by
      all Purchasers participating under this Section 4.12.

    


    (f)  The
      Company must provide the Purchasers with a second Subsequent Financing Notice,
      and the Purchasers will again have the right of participation set forth above
      in
      this Section 4.12, if the Subsequent Financing subject to the initial Subsequent
      Financing Notice is not consummated for any reason on the terms set forth in
      such Subsequent Financing Notice within 30 Trading Days after the date of the
      initial Subsequent Financing Notice. 

    


    (g)  Notwithstanding
      the foregoing, this Section 4.12 shall not apply in respect of (i) an Exempt
      Issuance, or (ii) an underwritten public offering of Common Stock.

    


    4.13 Certain
      Subsequent Equity Sales and Issuances.
      

    


    (a)  From
      the
      date hereof until 90 days after the Effective Date, neither the Company nor
      any
      Subsidiary shall issue shares of Common Stock or Common Stock Equivalents;
      provided, however, the 90 day period set forth in this Section 4.13 shall be
      extended for the number of Trading Days during such period in which (i) trading
      in the Common Stock is suspended by any Trading Market, or (ii) following the
      Effective Date, the Registration Statement is not effective or the prospectus
      included in the Registration Statement may not be used by the Purchasers for
      the
      resale of the Underlying Shares. 

    


    (b)  From
      the
      date hereof until such time as no Purchaser holds any of the Securities, the
      Company shall be prohibited from effecting or entering into an agreement to
      effect any Subsequent Financing involving a Variable Rate Transaction.
“Variable
      Rate Transaction”
means
      a
      transaction in which the Company (i) issues or sells any debt or equity
      securities that are convertible into, exchangeable or exercisable for, or
      include the right to receive, additional shares of Common Stock either (A)
      at a
      conversion price, exercise price or exchange rate or other price that is based
      upon, and/or varies with, the trading prices of or quotations for the shares
      of
      Common Stock at any time after the initial issuance of such debt or equity
      securities or (B) with a conversion, exercise or exchange price that is subject
      to being reset at some future date after the initial issuance of such debt
      or
      equity security or upon the occurrence of specified or contingent events
      directly or indirectly related to the business of the Company or the market
      for
      the Common Stock or (ii) enters into any agreement, including, but not limited
      to, an equity line of credit, whereby the Company may sell securities at a
      future determined price. Any Purchaser shall be entitled to obtain injunctive
      relief against the Company to preclude any such issuance, which remedy shall
      be
      in addition to any right to collect damages. 

     

    
      
        
        

      

      
        33

        
          

        

      

      
        
        

      

    

     

    (c)  The
      Company shall not issue any options to employees, officers or directors of
      the
      Company pursuant to any stock or option plan duly adopted for such purpose
      by a
      majority of the non-employee members of the Board of Directors or a majority
      of
      the members of a committee of non-employee directors established for such
      purpose at an exercise price less than the fair market value of such shares
      of
      Common Stock as of the date of issuance of such option.

    


    (d)  Notwithstanding
      the foregoing, this Section 4.13 shall not apply in respect of an Exempt
      Issuance, except that no Variable Rate Transaction shall be an Exempt
      Issuance.

    


    4.14
      Equal
      Treatment of Purchasers.
      No
      consideration (including any modification of any Transaction Document) shall
      be
      offered or paid to any Person to amend or consent to a waiver or modification
      of
      any provision of any of the Transaction Documents unless the same consideration
      is also offered to all of the parties to the Transaction Documents. For
      clarification purposes, this provision constitutes a separate right granted
      to
      each Purchaser by the Company and negotiated separately by each Purchaser,
      and
      is intended for the Company to treat the Purchasers as a class and shall not
      in
      any way be construed as the Purchasers acting in concert or as a group with
      respect to the purchase, disposition or voting of Securities or
      otherwise.

     

    4.15 Short
      Sales and Confidentiality After The Date Hereof.
      Each
      Purchaser, severally and not jointly with the other Purchasers, covenants that
      neither it, nor any Affiliate acting on its behalf or pursuant to any
      understanding with it, will execute any Short Sales during the period commencing
      with the Discussion Time and ending on the 12 month anniversary of the Effective
      Date. 
      Each
      Purchaser, severally and not jointly with the other Purchasers, covenants that
      until such time as the transactions contemplated by this Agreement are publicly
      disclosed by the Company as described in Section 4.6, such Purchaser will
      maintain the confidentiality of the existence and terms of this transaction
      and
      the information included in the Transaction Documents and the Disclosure
      Schedules. Notwithstanding
      the foregoing, in the case of a Purchaser that is a multi-managed investment
      vehicle whereby separate portfolio managers manage separate portions of such
      Purchaser’s assets and the portfolio managers have no direct knowledge of the
      investment decisions made by the portfolio managers managing other portions
      of
      such Purchaser’s assets, the covenant set forth above shall only apply with
      respect to the portion of assets managed by the portfolio manager that made
      the
      investment decision to purchase the Securities covered by this
      Agreement.

     

    
      
        
        

      

      
        34

        
          

        

      

      
        
        

      

    

     

    4.16 Form
      D; Blue Sky Filings.
      The
      Company agrees to timely file a Form D with respect to the Securities as
      required under Regulation D and to provide a copy thereof, promptly upon request
      of any Purchaser. The Company shall take such action as the Company shall
      reasonably determine is necessary in order to obtain an exemption for, or to
      qualify the Securities for, sale to the Purchasers at the Closing under
      applicable securities or “Blue Sky” laws of the states of the United States, and
      shall provide evidence of such actions promptly upon request of any
      Purchaser.

     

    4.17 Capital
      Changes.
      Until
      the one year anniversary of the Effective Date, the Company shall not undertake
      a reverse or forward stock split or reclassification of the Common Stock without
      the prior written consent of the Purchasers holding a majority in interest
      of
      the shares of Preferred Stock.

     

    4.18 Investor
      Relations.
      No
      later than the Closing Date, the Company shall establish a segregated escrow
      account to be in the name of, and managed by Sovereign Bancorp Ltd. (such
      account, the “IR
      Escrow Account”
and
      such escrow agent, “Sovereign”)
      and
      deposit $500,000 of the gross proceeds (the “IR
      Proceeds”)
      of the
      Closing into such IR Escrow Account. The Company shall use the IR Proceeds
      solely for the purpose of costs and expenses directly related to investor
      relations initiatives to be arranged by the Company after the date hereof.
      Additionally, the Company shall deposit no less than 15% of all gross proceeds
      generated from each exercise of any of the Warrants into the IR Escrow Account
      no later than five (5) Business Days after each applicable Exercise Date (as
      defined in the Warrants).

     

     

    4.19 Director
      & Officer Insurance.
      No
      later than 30 Business Days following the date hereof (or such later date as
      Vision agrees to in writing), the Company and each Subsidiary agree to be
      insured by insurers of recognized financial responsibility against such losses
      and risks and in such amounts as are prudent and customary in the businesses
      in
      which the Company and the Subsidiaries are engaged, including, but not limited
      to, directors and officers insurance coverage at least equal to $3,000,000,
      which amount shall be reasonably acceptable to Vision. The obligations of the
      Company pursuant to this Section 4.19 shall terminate upon the earlier of (i)
      written notice of such termination by Vision to the Company or (ii) the date
      less than 20% of the shares of Preferred Stock remain outstanding.

     

    4.20 Key-Man
      Insurance.
      No
      later than 30 Business Days following the date hereof (or such later date as
      Vision agrees to in writing), the Company agrees to obtain key man insurance
      in
      the amount of $3,000,000 for Daniel Juhl and in the amount of $2,000,000 for
      John Mitola. No later than 90 Business Days following the date hereof (or such
      later date as Vision agrees to in writing), the Company agrees to obtain
      additional key man insurance in the amount of $2,000,000 for Daniel Juhl. Such
      key man insurance for Mr. Juhl and Mr. Mitola shall be provided by insurers
      of
      recognized financial responsibility. The obligations of the Company pursuant
      to
      this Section 4.20 shall terminate upon the earlier of (i) written notice of
      such
      termination by Vision to the Company or (ii) the date less than 20% of the
      shares of Preferred Stock are no longer outstanding.

     

    
      
        
        

      

      
        35

        
          

        

      

      
        
        

      

    

     

    4.21 Limitation
      on Transaction Fees.
      The
      Company shall not pay any transaction fees from gross proceeds of the sale
      of
      the Securities pursuant to the Transaction Documents in any amount in the
      aggregate, greater than (a) $100,000 for the purpose of auditing fees and
      expenses, (b) $200,000 for the purpose of legal fees and expenses to Company
      Counsel and counsel to the Company in connection with the Exchange Agreement,
      and (c) all fees set forth on Schedule
      3.1(s)
      to
      Greenview Capital.

     

    4.22 SEC
      Counsel.
      No
      later than 30 Business Days following the date hereof (or such later date as
      Vision agrees to in writing), the Company agrees to retain legal counsel to
      represent the Company in connection with the Registration Statement required
      to
      be filed pursuant to the Registration Rights Agreement, and such legal counsel
      shall be reasonably acceptable to Vision.

     

    4.23 Board
      of Directors.
      No
      later than the 6 month anniversary following the date hereof (the “Appointment
      Date”),
      the
      Company shall appoint two additional independent directors to the Board of
      Directors (such directors, the “Company
      Appointees”);
      provided,
      however,
      if the
      Company shall not have appointed such additional independent directors by the
      Appointment Date, within 60 days following the Appointment Date, Vision shall
      have the right, but not the obligation, to appoint two additional independent
      directors to the Board of Directors, subject to the reasonable consent of the
      Company (such directors, the “Vision
      Appointees”
and
      together with the Company Appointees, the “Board
      Appointees”).
      The
      Company agrees that it shall have its Board of Directors or nominating
      committee, if it has one, nominate each of the Board Appointees pursuant to
      this
      Section 4.23 and to recommend to the Company’s stockholders that that they vote
“for” such nominees, and that all proxies given to management are voted in favor
      of such nominees. The Company shall use best efforts to obtain and maintain
      directors and officers liability insurance in such amounts as are customary
      for
      companies of the Company’s size for the Board Appointees and shall enter into an
      indemnification contract with each of the Board Appointees, or their respective
      designees, as directors of the Board of Directors, in form and substance
      reasonably satisfactory to such individuals. The right of Vision to appoint
      the
      Vision Appointees pursuant to this Section 4.23 shall terminate upon written
      notice of such termination by Vision to the Company.

     

     

    ARTICLE
      V

    MISCELLANEOUS

     

    5.1
      Termination. 
      This Agreement may be terminated by any Purchaser, as to such Purchaser’s
      obligations hereunder only and without any effect whatsoever on the obligations
      between the Company and the other Purchasers, by written notice to the other
      parties, if the Closing has not been consummated on or before August 23, 2008;
      provided,
      however,
      that
      such termination will not affect the right of any party to sue for any breach
      by
      the other party (or parties).

     

    5.2
      Fees
      and Expenses.
      At the
      Closing, the Company has agreed to reimburse Vision the non-accountable sum
      of
      (a) $35,000 for its legal fees and expense and (b) $25,000 for its due diligence
      fees and expenses, none of which shall have been paid prior to the Closing
      Date.
      The Company shall deliver to each Purchaser, prior to the Closing, a completed
      and executed copy of the Closing Statement, attached hereto as Annex
      A.
      Except
      as expressly set forth in the Transaction Documents to the contrary, each party
      shall pay the fees and expenses of its advisers, counsel, accountants and other
      experts, if any, and all other expenses incurred by such party incident to
      the
      negotiation, preparation, execution, delivery and performance of this Agreement.
      The Company shall pay all Transfer Agent fees, stamp taxes and other taxes
      and
      duties levied in connection with the delivery of any Securities to the
      Purchasers.

     

    
      
        
        

      

      
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    5.3
      Entire
      Agreement.
      The
      Transaction Documents, together with the exhibits and schedules thereto, contain
      the entire understanding of the parties with respect to the subject matter
      hereof and supersede all prior agreements and understandings, oral or written,
      with respect to such matters, which the parties acknowledge have been merged
      into such documents, exhibits and schedules.

     

    5.4 Notices.
      Any and
      all notices or other communications or deliveries required or permitted to
      be
      provided hereunder shall be in writing and shall be deemed given and effective
      on the earliest of: (a) the date of transmission, if such notice or
      communication is delivered via facsimile at the facsimile number set forth
      on
      the signature pages attached hereto prior to 5:30 p.m. (New York City time)
      on a
      Trading Day, (b) the next Trading Day after the date of transmission, if such
      notice or communication is delivered via facsimile at the facsimile number
      set
      forth on the signature pages attached hereto on a day that is not a Trading
      Day
      or later than 5:30 p.m. (New York City time) on any Trading Day, (c) the second
      Trading Day following the date of mailing, if sent by U.S. nationally recognized
      overnight courier service or (d) upon actual receipt by the party to whom such
      notice is required to be given. The address for such notices and communications
      shall be as set forth on the signature pages attached hereto.

     

    5.5 Amendments;
      Waivers.
      No
      provision of this Agreement may be waived, modified, supplemented or amended
      except in a written instrument signed, in the case of an amendment, by the
      Company and the Purchasers holding at least 67% in interest of the Securities
      then outstanding or, in the case of a waiver, by the party against whom
      enforcement of any such waived provision is sought. No waiver of any default
      with respect to any provision, condition or requirement of this Agreement shall
      be deemed to be a continuing waiver in the future or a waiver of any subsequent
      default or a waiver of any other provision, condition or requirement hereof,
      nor
      shall any delay or omission of any party to exercise any right hereunder in
      any
      manner impair the exercise of any such right.

     

    5.6 Headings.
      The
      headings herein are for convenience only, do not constitute a part of this
      Agreement and shall not be deemed to limit or affect any of the provisions
      hereof.

     

    5.7 Successors
      and Assigns.
      This
      Agreement shall be binding upon and inure to the benefit of the parties and
      their successors and permitted assigns. The Company may not assign this
      Agreement or any rights or obligations hereunder without the prior written
      consent of each Purchaser (other than by merger). Any Purchaser may assign
      any
      or all of its rights under this Agreement to any Person to whom such Purchaser
      assigns or transfers any Securities, provided that such transferee agrees in
      writing to be bound, with respect to the transferred Securities, by the
      provisions of the Transaction Documents that apply to the
“Purchasers.”

     

    
      
        
        

      

      
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    5.8 No
      Third-Party Beneficiaries.
      This
      Agreement is intended for the benefit of the parties hereto and their respective
      successors and permitted assigns and is not for the benefit of, nor may any
      provision hereof be enforced by, any other Person, except as otherwise set
      forth
      in Section 4.10.

     

    5.9 Governing
      Law.
      All
      questions concerning the construction, validity, enforcement and interpretation
      of the Transaction Documents shall be governed by and construed and enforced
      in
      accordance with the internal laws of the State of New York, without regard
      to
      the principles of conflicts of law thereof. Each party agrees that all legal
      proceedings concerning the interpretations, enforcement and defense of the
      transactions contemplated by this Agreement and any other Transaction Documents
      (whether brought against a party hereto or its respective affiliates, directors,
      officers, shareholders, employees or agents) shall be commenced exclusively
      in
      the state and federal courts sitting in the City of New York. Each party hereby
      irrevocably submits to the exclusive jurisdiction of the state and federal
      courts sitting in the City of New York, borough of Manhattan for the
      adjudication of any dispute hereunder or in connection herewith or with any
      transaction contemplated hereby or discussed herein (including with respect
      to
      the enforcement of any of the Transaction Documents), and hereby irrevocably
      waives, and agrees not to assert in any suit, action or proceeding, any claim
      that it is not personally subject to the jurisdiction of any such court, that
      such suit, action or proceeding is improper or is an inconvenient venue for
      such
      proceeding. Each party hereby irrevocably waives personal service of process
      and
      consents to process being served in any such suit, action or proceeding by
      mailing a copy thereof via registered or certified mail or overnight delivery
      (with evidence of delivery) to such party at the address in effect for notices
      to it under this Agreement and agrees that such service shall constitute good
      and sufficient service of process and notice thereof. Nothing contained herein
      shall be deemed to limit in any way any right to serve process in any other
      manner permitted by law. If either party shall commence an action or proceeding
      to enforce any provisions of the Transaction Documents, then the prevailing
      party in such action or proceeding shall be reimbursed by the other party for
      its reasonable attorneys’ fees and other costs and expenses incurred with the
      investigation, preparation and prosecution of such action or
      proceeding.

     

    5.10 Survival.
      The
      representations and warranties contained herein shall survive the Closing and
      the delivery of the Securities for the applicable statute of limitations.


     

    5.11 Execution.
      This
      Agreement may be executed in two or more counterparts, all of which when taken
      together shall be considered one and the same agreement and shall become
      effective when counterparts have been signed by each party and delivered to
      the
      other party, it being understood that both parties need not sign the same
      counterpart. In the event that any signature is delivered by facsimile
      transmission or by e-mail delivery of a “.pdf” format data file, such signature
      shall create a valid and binding obligation of the party executing (or on whose
      behalf such signature is executed) with the same force and effect as if such
      facsimile or “.pdf” signature page were an original thereof.

     

    5.12 Severability.
      If any
      term, provision, covenant or restriction of this Agreement is held by a court
      of
      competent jurisdiction to be invalid, illegal, void or unenforceable, the
      remainder of the terms, provisions, covenants and restrictions set forth herein
      shall remain in full force and effect and shall in no way be affected, impaired
      or invalidated, and the parties hereto shall use their commercially reasonable
      efforts to find and employ an alternative means to achieve the same or
      substantially the same result as that contemplated by such term, provision,
      covenant or restriction. It is hereby stipulated and declared to be the
      intention of the parties that they would have executed the remaining terms,
      provisions, covenants and restrictions without including any of such that may
      be
      hereafter declared invalid, illegal, void or unenforceable.

     

    
      
        
        

      

      
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    5.13 Rescission
      and Withdrawal Right.
      Notwithstanding anything to the contrary contained in (and without limiting
      any
      similar provisions of) any of the other Transaction Documents, whenever any
      Purchaser exercises a right, election, demand or option under a Transaction
      Document and the Company does not timely perform its related obligations within
      the periods therein provided, then such Purchaser may rescind or withdraw,
      in
      its sole discretion from time to time upon written notice to the Company, any
      relevant notice, demand or election in whole or in part without prejudice to
      its
      future actions and rights; provided,
      however,
      that in
      the case of a rescission of a conversion of the Preferred Stock or exercise
      of a
      Warrant, the Purchaser shall be required to return any shares of Common Stock
      subject to any such rescinded conversion or exercise notice.

     

    5.14 Replacement
      of Securities.
      If any
      certificate or instrument evidencing any Securities is mutilated, lost, stolen
      or destroyed, the Company shall issue or cause to be issued in exchange and
      substitution for and upon cancellation thereof (in the case of mutilation),
      or
      in lieu of and substitution therefor, a new certificate or instrument, but
      only
      upon receipt of evidence reasonably satisfactory to the Company of such loss,
      theft or destruction. The applicant for a new certificate or instrument under
      such circumstances shall also pay any reasonable third-party costs (including
      customary indemnity) associated with the issuance of such replacement
      Securities.

     

    5.15 Remedies.
      In
      addition to being entitled to exercise all rights provided herein or granted
      by
      law, including recovery of damages, each of the Purchasers and the Company
      will
      be entitled to specific performance under the Transaction Documents. The parties
      agree that monetary damages may not be adequate compensation for any loss
      incurred by reason of any breach of obligations contained in the Transaction
      Documents and hereby agrees to waive and not to assert in any action for
      specific performance of any such obligation the defense that a remedy at law
      would be adequate.

     

    5.16 Payment
      Set Aside.
      To the
      extent that the Company makes a payment or payments to any Purchaser pursuant
      to
      any Transaction Document or a Purchaser enforces or exercises its rights
      thereunder, and such payment or payments or the proceeds of such enforcement
      or
      exercise or any part thereof are subsequently invalidated, declared to be
      fraudulent or preferential, set aside, recovered from, disgorged by or are
      required to be refunded, repaid or otherwise restored to the Company, a trustee,
      receiver or any other person under any law (including, without limitation,
      any
      bankruptcy law, state or federal law, common law or equitable cause of action),
      then to the extent of any such restoration the obligation or part thereof
      originally intended to be satisfied shall be revived and continued in full
      force
      and effect as if such payment had not been made or such enforcement or setoff
      had not occurred.

     

    
      
        
        

      

      
        39

        
          

        

      

      
        
        

      

    

     

    5.17
      Usury.
      To the
      extent it may lawfully do so, the Company hereby agrees not to insist upon
      or
      plead or in any manner whatsoever claim, and will resist any and all efforts
      to
      be compelled to take the benefit or advantage of, usury laws wherever enacted,
      now or at any time hereafter in force, in connection with any claim, action
      or
      proceeding that may be brought by any Purchaser in order to enforce any right
      or
      remedy under any Transaction Document. Notwithstanding any provision to the
      contrary contained in any Transaction Document, it is expressly agreed and
      provided that the total liability of the Company under the Transaction Documents
      for payments in the nature of interest shall not exceed the maximum lawful
      rate
      authorized under applicable law (the “Maximum
      Rate”),
      and,
      without limiting the foregoing, in no event shall any rate of interest or
      default interest, or both of them, when aggregated with any other sums in the
      nature of interest that the Company may be obligated to pay under the
      Transaction Documents exceed such Maximum Rate. It is agreed that if the maximum
      contract rate of interest allowed by law and applicable to the Transaction
      Documents is increased or decreased by statute or any official governmental
      action subsequent to the date hereof, the new maximum contract rate of interest
      allowed by law will be the Maximum Rate applicable to the Transaction Documents
      from the effective date forward, unless such application is precluded by
      applicable law. If under any circumstances whatsoever, interest in excess of the
      Maximum Rate is paid by the Company to any Purchaser with respect to
      indebtedness evidenced by the Transaction Documents, such excess shall be
      applied by such Purchaser to the unpaid principal balance of any such
      indebtedness or be refunded to the Company, the manner of handling such excess
      to be at such Purchaser’s election.

     

    5.18 Independent
      Nature of Purchasers’ Obligations and Rights.
      The
      obligations of each Purchaser under any Transaction Document are several and
      not
      joint with the obligations of any other Purchaser, and no Purchaser shall be
      responsible in any way for the performance or non-performance of the obligations
      of any other Purchaser under any Transaction Document. Nothing contained herein
      or in any other Transaction Document, and no action taken by any Purchaser
      pursuant thereto, shall be deemed to constitute the Purchasers as a partnership,
      an association, a joint venture or any other kind of entity, or create a
      presumption that the Purchasers are in any way acting in concert or as a group
      with respect to such obligations or the transactions contemplated by the
      Transaction Documents. Each Purchaser shall be entitled to independently protect
      and enforce its rights, including, without limitation, the rights arising out
      of
      this Agreement or out of the other Transaction Documents, and it shall not
      be
      necessary for any other Purchaser to be joined as an additional party in any
      proceeding for such purpose. Each Purchaser has been represented by its own
      separate legal counsel in their review and negotiation of the Transaction
      Documents. For reasons of administrative convenience only, Purchasers and their
      respective counsel have chosen to communicate with the Company through FWS.
      FWS
      does not represent all of the Purchasers but only Vision. The Company has
      elected to provide all Purchasers with the same terms and Transaction Documents
      for the convenience of the Company and not because it was required or requested
      to do so by the Purchasers.

     

    5.19 Liquidated
      Damages.
      The
      Company’s obligations to pay any partial liquidated damages or other amounts
      owing under the Transaction Documents is a continuing obligation of the Company
      and shall not terminate until all unpaid partial liquidated damages and other
      amounts have been paid notwithstanding the fact that the instrument or security
      pursuant to which such partial liquidated damages or other amounts are due
      and
      payable shall have been canceled.

     

    
      
        
        

      

      
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    5.20 Saturdays,
      Sundays, Holidays, etc. If
      the
      last or appointed day for the taking of any action or the expiration of any
      right required or granted herein shall not be a Business Day, then such action
      may be taken or such right may be exercised on the next succeeding Business
      Day.

     

    5.21 Construction.
      The
      parties agree that each of them and/or their respective counsel has reviewed
      and
      had an opportunity to revise the Transaction Documents and, therefore, the
      normal rule of construction to the effect that any ambiguities are to be
      resolved against the drafting party shall not be employed in the interpretation
      of the Transaction Documents or any amendments hereto.

     

    5.22
      WAIVER
      OF JURY TRIAL.
      IN ANY ACTION, SUIT, OR PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY
      AGAINST ANY OTHER PARTY, THE PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE
      GREATEST EXTENT PERMITTED BY APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY,
      IRREVOCABLY AND EXPRESSLY WAIVES FOREVER TRIAL BY JURY. 

     

    


     

    (Signature
      Pages Follow)

     

    
      
        
        

      

      
        41

        
          

        

      

      
        
        

      

    

    
 

    IN
      WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
      Agreement to be duly executed by their respective authorized signatories as
      of
      the date first indicated above.

     

    


    
      	
              JUHL
                ENERGY, INC.

            	
              Address
                for Notice:

            
	
              By:/s/
                Dan
                Juhl                                                                              
                

              Name:
                Dan Juhl

              Title:
                Chief Executive Officer

              With
                a copy to (which shall not constitute notice):

            	
              Fax:

            


    

    


    


    


    


    [REMAINDER
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    SIGNATURE
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    [PURCHASER
      SIGNATURE PAGES TO JUHL SECURITIES PURCHASE AGREEMENT]

    


    IN
      WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
      to be duly executed by their respective authorized signatories as of the date
      first indicated above.

     

    Name
      of
      Purchaser: ____________________________________________________

     

    Signature
      of Authorized Signatory of Purchaser:
      __________________________

     

    Name
      of
      Authorized Signatory: ____________________________________

     

    Title
      of
      Authorized Signatory: _____________________________________

     

    Email
      Address of Authorized Signatory:
      ___________________________________________

     

    Fax
      Number of Authorized Signatory:
      _________________________________________

     

    


    Address
      for Notice of Purchaser:

    


    


    


    


    Address
      for Delivery of Securities for Purchaser (if not same as address for
      notice):

    


     

    


    


    Subscription
      Amount:____________

     

    Shares
      of
      Preferred Stock:____________

     

    Series
      A
      Warrant Shares:________________

     

    Series
      B
      Warrant Shares:________________

     

    Series
      C
      Warrant Shares:________________

     

    EIN
      Number: [PROVIDE
      THIS UNDER SEPARATE COVER]

    


    


    


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